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The  Louisiana 
Historical  Quarterly 


Vol.  4 

January-October 

1921 


JOHN  DYMOND.  EDITOR 

(See  note  cm  next  page) 


PUBLISHED  QUARTERLY  BY  LOUISIANA  HISTORICAL  SOCIETY 

NEW  ORLEANS,  LA. 


Ramires-Jones  Printing,  Company 

Baton  Route,  La. 

1922 


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NOTE 

The  1921  volume  of  Louisiana  Historical  Quarterly  was  pre- 
pared for  the  press  by  Mr.  Henry  P.  Dart,  who  succeeded  Mr, 
John  Dymond  as  Editor  in  1922,  after  the  latter 's  death.  He  died 
without  having  published  any  of  the  numbers  for  1921. 

September  15,  1922. 


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INDEX 

TO 

THE  LOUISIANA  HISTORICAL  QUARTERLY 
Vohime  4,  1921 


Pasre 
ARCHIVES  LOUISIANA.     See  Louisiana. 

BOOTH,  A.  B.    Confederate  Military  Records  of  Louisiana 369 

BAR.   THE  LOUISIANA,  bv   T.   C.   W.   Ellis 81 

BILOXI   BI-CENTENNIAL,   by  Andre   Lafargfue 459 

CABILDO  ARCHIVE^S.    See  Louisiana. 

CENTENARY  OF  SUPREME  COURT  OF  LOUISLViNA,  1918 5 

Invocation,  Rev.  J.  D.  Foullces,  S.  J 7 

Opening  Address,  Joseph  W.  Carroll 9 

Address  of  Welcome,  Gov.  Luther  E.  Hall 12 

The  History  of  the  Supreme  Court  of  Louisiana,  Henry  Plauche  Dart.     14 
The  Jurisprudence  of  the  Supreme  Court  of  Louisiana, 

Charles  Payne  Fenner 71 

The  Louisiana  Bar,  T.  C.  W.  Ellis 81 

The  Centennial  Year,  Joseph  A.  Breaux 106 

Prayer,  Rt.  Rev.  Davis  Sessums 109 

The  Justices  of  the  Supreme  Court,  William  Kernan  Dart 112 

COURTS  AND  LAW  IN  COLONIAL  LOUISIANA,  Henry  P.  Dart 255 

CHARITY  HOSPITAL  FIRST  IN  NEW  ORLEANS  (1736) 359 

I>ART,  HENRY  P.    Courts  and  Law  in  Colonial  Louisiana 255 

History  of  Supreme  Court  of  Louisiana 14 

Indian   Titles   to  Land   in   French  and   Spanish   Periods 134 

Mazureau's  Oration  on  Mathews 149 

Servinien's    Case — 1752 290 

DART.  WILLLIAM  KERNAN.  The  Justices  of  the  Supreme  Court  of  La.     U3 

ELLIS,  T.  C.  W.    The  Louisiana  Bar * . .     81 

FENNER,  CHAS.  PAYNE.    Jurisprudence  of  Supreme  Court  Louisiana..     71 

GAYARRE,  CHARLES.     Report  on  Ix)uisiGna  Archives  in  Spain,  1850 466 

HART,W.  O.    Rights  of  Women  in  Louisiana 437 

INDIAN  LAND   TITLES 134 

JURISPRUDE:NCE  supreme  court  LOUISIANA.  Chas.  Payne  Fenner.     71 
KING,  GRACE.     Selections  from  Her  Scrap  Book. 

Fossils,  Interesting,  of  Louisiana 130 

St.  Louis  Hotel,  Old , 128 

Slaver,    Last    Captured 132 

Ye  Olden  Tyme 125 

LAFARGUE,  ANDRE.     Biloxi  Bl-Centennlal 459 

LOUISIANA. 

Cabildo  Archives,    VI,  Supplement  to  Emancipation  of 

Marie   Aram,   3.551 366 

Cabildo  Archives,  VII,  Supplement  to  First  Charity  Hospital,  3.554 359 


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INDEX— Continued 

Page 

Cabildo  Archives,   IX,  Passport  to  Ship  "Apollo" 216 

Confederate  Military  Records,  by  A.  B,  Booth......... ..,. 369 

Courts  and  Lew,  Colonial,  by  Henry  Pf  Dart'. .'...'... i. ....... i 255 

Dart,  Henry  P.,  Courts  and  Law  in  Colonial  Louisiana 255 

Indian  Land  Titles 134 

Servinlen's    Case— 1752 290 

Dart,  Henry  P.,  Editor.     See   Cabildo   Archives,   Records  of   Superior 
Council. 

Gayarre  Report  on  La.  Archives  in  Spain,   1850 466 

Gov.  Unzaga's  Pire  Ordinance ,. 201 

Indian  Land  TiUes 184 

Mathews,  George,  President  Louisiana  Supreme  Court, 

by  Btienne  Mazureau 154 

Mazureau's  Oration  on,  by  H.  P.  Dart 149 

Watts'    Discourse    on 189 

•New  Orleans  Fire  Protection,  Spanish  Period 201 

Records  of  Superior  Council.     (See  below.) 

Servinien's  Case — 1752,  Henry  P.  Dart 290 

Spain,  Allegiance  to.  Oath  of 205 

Superior  Council,  Records  of.  Edited  by  H.  P.  Dart: 

XI     1727-1728 218 

XI     1728-1730    324 

XII     1728-1730   483 

Supreme  Court  of  La.,  Centenary  of 5 

MATHEWS,  GEORGE,  Panegyric  on,  by  Etienne  Mazureau 154 

MAZUREAU'S  ORATION  ON  MATHEWS,  by  Henry  P.  Dart 149 

MAZUREAU,  ETIENNE,  Panegyric  on  George  Mathews 254 

NEW  ORLEANS,  Charity  Hospital  First  in,  1736 869 

Fire  Protection  in  Spanish  Period 201 

PARSONS,  EDWARD  A.,  Stones  of  Reims 425 

RECORDS   OF   SUPERIOR  COUNCIL 218 

REIMS,  STONES  OF,  by  Edward  A.  Parsons 425 

SERVINIEN'S  CASE,  1752,  by  Henry  P.  Dart 290 

SPAIN,  OATH  OF  ALLEGIANCE,  by  People  of  Illinois  and  Louisiana 205 

SLAVER,  LAST  CAPTURiED,  Miss  King's  Scrap-Book 132 

SUPERIOR  COUJ^CIL  OF  LOUISIANA,  Index  to  Records.     See  Louisiana. 

SUPREME  COURT  OF  LOUISIANA,  CENTENARY,  1913 5 

UNZAGA,  GOVERNOR  OF  LOUISIANA,  Fire  Ordinance  for  New  Orleans.  201 
WATTS,  CHARLES,  Discourse  on  George  Mathews 189 


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The  Louisiana 
Historical  Quarterly 


Vol.  4,  No.  1.  January,  1921 


The  Celebration  of  the  Centenary 
of  the  Supreme  Court  of  Louis- 
iana 

Ye  Olden  Tytne 

Remembrances  of  New  Orleans  and 
the  Old  St.  Louis  Hotel 

Interesting  Fossils 

The  Last  Captured  Slaver 

Louisiana  Land  Titles  Derived  Jrom 
Indian  Tribes 


Publif  hed  Qaarterly  by 

THE  LOUISIANA  HISTORICAL  SOCIETY 

CABILDO,  NEW  ORLEANS,  LA. 


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The  Louisiana 
Historical  Quarterly 


Vol.  4.  No  1 


January,  1921 


Entered  to  the  second  class  mail  matter  June  6.  1917,  ac  the  post-oflice  ^t^New  Orleans,  La., 
under  Act  ot  August  24.  1912. 

Subscription  $2.00  per  annum,  payable  in  advance.    Address,  Louisiana  Historical  Quarterly, 
>    Gabildo.New  Orleans,  La, 


Raniires-Jones  Printing  Co. 
Baton  Rouge,  La. 


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OFFICERS 

OP  THE 

LOUISIANA  HISTORICAL  SOCIETY 

GASPAR  CUSACHS,  President. 

JOHN  DYMOND.  First  Vice-President. 

BUSSIERE  ROUEN,  Second  Vice-President. 

HENRY  RENSHAW.  Third  Vice-President. 

W.  O.  HART.  Treasurer. 

HENRY  P.  DART.  Archivist. 

MISS  GRACE  KING.  Recording  Secretary. 

MRS.  HELOISE  HULSE  CRUZAT,  Corresponding  Secretary. 

Executive  Committee 

John  Dymond.  Chairman;  Caspar  Cusachs,  Bussiere  Rouen.  Henry  Renshaw. 
W.  O.  Hart.  Henry  P.  Dart,  Miss  Crace  King  and  Mrs.  Heloise  Hulse  Cruzat. 

Editor  Historical  Quarterly 

JOHN  DYMOND.  Cabildo.  New  OrleanR. 


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Table  of  Contents  • 

N  ciij  MK  4,  No.  1  January,  1921 


The  Celebration  of  the  Centenary  of  the  Supreme  Court  of 

Louisiana 5 

Ye  Olden  Tyme 125 

Remembrances  of  New  Orleans  and  the  Old  St.  Louis  Hotel 128 

Interesting  Fossils 130 

The  Last  Captured  Slaver 132 

Louisiana  Land  Titles  Derived  from  Indian  Tribes 134 


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The  Louisiana 
Historical  Quarterly 

Vol.  4,  No.  1  January,  1921 


THE  CELEBRATION  OF  THE  CENTENARY  OF  THE 
SUPREME  COURT  OF  LOUISIANA* 


Supreme  Court  Room, 
New  Orleans,  Saturday,  March  1,  1913. 

The  Supreme  Court  of  Louisiana  met  at  11  o'clock  a.  m.  on  this 
day  in  special  session  to  celebrate  the  centenary  of  the  organiza- 
tion of  the  Court.  There  were  present  on  the  bench  his  honor, 
Chief  Justice  Joseph  A.  Breaux,  and  their  honors.  Associate 
Justices  Frank  A.  Monroe,  Olivier  0.  Provosty,  Alfred  D.  Land, 
and  Walter  B.  Sommerville,  the  Clerk  of  the  Court,  Mr.  Paul  E. 
Mortimer,  being  also  in  attendance.  There  were  also  sitting  with 
the  Court  as  its  guests  the  following  judges  of  the  Federal  Courts 
in  Louisiana,  namely,  Hon.  Don  A.  Pardee,  David  D.  Shelby,  and 
W.  T.  Newman,  Judges  of  the  United  States  Circuit  Court  of  Ap- 
peals for  the  Fifth  Circuit  now  sitting  in  New  Orleans,  and  Judge 
Rufus  E.  Foster,  United  States  District  Judge  for  the  Eastern 
District  of  Louisiana. 

The  Governor  of  Louisiana,  Luther  E.  Hall,  the  Mayor  of 
New  Orleans,  Martin  Behrman,  Very  Rev.  J.  D.  Foulkes,  S.  J., 
and  Right  Rev.  Davis  Sessums,  D.  D.,  Episcopal  Bishop  of  Lou- 
isiana, occupied  seats  just  below  the  dais.  Ex-Justice  N.  C. 
Blanchard  and  Justice-Elect  Charles  A.  O'Niell  were  also  present. 

Besides  the  foregoing,  the  ceremony  was  attended  by  the 
Judges  of  the  Court  of  Appeal  of  New  Orleans,  all  the  District 
Judges  of  Orleans  and  many  from  the  parishes,  the  Attorney 


♦Reprinted  from  Volume  133  of  the  Louisiana  Supreme  Court  Annuals,  by 
permission  of  the  West  Publishing  Company. 


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6  The  Louisiana  Historical  Quarterly 

General  of  the  State,  the  City  Attorney  of  New  Orleans,  and  the 
District  Attorney  of  the  United  States,  the  entire  local  judiciary 
and  lawyers  from  New  Orleans  and  elsewhere,  and  officials  from 
all  parts  of  the  state. 

Edward  Douglass  White,  Chief  Justice  of  the  Supreme  Court 
of  the  United  States,  had  been  invited  to  the  ceremonies,  but 
wrote  a  letter  to  Mr.  H.  Gibbes  Morgan,  expressing  his  regret  at 
his  inability  to  attend.  This  letter  was  read  by  Mr.  Joseph  W. 
Carroll  during  his  opening  address. 

The  invited  guests  of  both  sexes  filled  the  auditorium  and 
an  orchestra  furnished  music. 

The  labor  of  preparation  for  the  centenary  and  the  manage- 
ment of  the  same  on  this  day  devolved  on  an  Executive  Commit- 
tee appointed  by  the  Court,  Mr.  Henry  P.  Dart,  Chairman,  Messrs. 
George  Den^gre,  H.  Gibbes  Morgan,  J.  C.  Henriques,  J.  J.  Mc- 
Laughlin, W.  A.  Bell,  and  Henry  L.  Favrot. 

Mr.  Bell  served  as  Chairman  of  the  Subcommittee  on  Pro- 
gramme, Mr.  J.  Blanc  Monroe  as  Chairman  of  the  Finance  Com- 
mittee, and  Mr.  W.  0.  Hart  as  Chairman  of  the  Publicity  Com- 
mittee. 

Besides  this  the  Court  created  a  committee  of  one  hundred 
lawyers  selected  from  all  parts  of  the  state  to  assist  the  Executive 
Committee. 

Mr.  John  Dymond,  Jr.,  was  Chairman  of  the  Reception 
Committee. 

Mr.  Joseph  W.  Carroll,  President  of  the  Louisiana  Bar  Asso- 
ciation, acted  as  Master  of  Ceremonies. 

The  session  was  opened  with  the  usual  formality,  and  the 
order  of  the  day  was  observed  as  set  forth  in  the  following  pro- 
gram: 

CEREMONIES. 

Saturday,  March  First,  Nineteen  Thirteen,  in  the  New  Court 
House  Building. 

En  Banc— ^The  Supreme  Court  of  Louisiana  and  the  Judges 
of  the  Federal  Courts. 

Invocation — ^Very  Rev.  J.  D.  Foulkes,  S.  J. 

Minutes — (Monday,  March  1,  1813.)  Paul  E.  Mortimer, 
Clerk. 


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Centenary  of  The  Supreme  Court  7 

Opening  Address — Joseph  W.  Carroll,  Master  of  Ceremonies. 

Address  of  Welcome — Governor  Luther  E.  Hall. 

The  Centenary  of  the  Supreme  Court — "The  History/'  Henry 
Plauch6  Dart;  "The  Jurisprudence/'  Charles  Payne  Fenner ;  "The 
Bar/'  Thomas  C.  W.  Ellis. 

Response  by  the  Chief  Justice — Joseph  A.  Breaux. 

Benediction — Right.  Rev.  Davis  Sessums,  D.  D. 

The  court  ordered  the  several  addresses  to  be  preserved  as 
part  of  the  minutes,  and  they  are  published  herewith. 


Invocation. 
By  the  Very  Rev.  J.  D.  Foulkes,  S.  J. 
God  of  justice  and  equity,  who  didst  engrave  in  man's  con- 
science the  natural  law  of  right  and  wrong  and  didst  promulgate 
its  mandates  and  prohibitions  in  all  positiveness  by  Moses  on 
Sinai's  tablets  of  stone,  we  thank  Thee  and  we  invoke  Thee !  For 
ten  decades.  Thou  hast  been  present  by  counsel  and  advice  among 
those  who  in  this  State  of  Louisiana  were  elected  to  render  deci- 
sions upon  matters  of  supreme  importance;  for  100  years  Thou 
hast  watched  the  earnest  endeavors  of  judges,  bent  heart  and  soul 
on  finally  settling  grave  questions  for  or  against  Thy  command- 
ments: "Thou  Shalt  not  kill;"  "Thou  shalt  not  steal;"  "Thou 
shalt  not  bear  false  witness  against  thy  neighbor ;"  for  a  century 
Thou  hast  given  strength  and  courage  to  Justices  and  Associate 
Justices  for  the  upholding  or  throwing  out  of  decisions  given  by 
lower  courts.  To  Thee  we  give  our  thankfulest  thanks.  Today  be 
Thou  auspicious  and  bless  the  efforts  of  those  appointed  to  por- 
tray the  glories  of  the  past,  the  needs  of  the  present,  andi  the 
hopes  of  the  future !  During  each  term  of  the  new  century  dawn- 
ing today  upon  our  Supreme  Court,  may  truth  be  ever  the  beacon 
light  of  our  Justices !  May  their  judgments  be  ever  like  unto  Solo- 
mon's, wise,  prudent,  and  just!  May  their  sifting  of  evidence  be 
as  accurate  as  that  of  the  prophet  Daniel,  discovering  the  wicked- 
ness of  the  elders  and  the  innocence  of  chaste  Susanna !  When 
time  dissolves  into  eternity,  and  the  last  assize  is  set  up  for  man's 
eternal  lot,  may  Thou,  unerring,  infallible  Divinity,  welcome  to 
Thy  eternal  courts  each  and  every  incumbent  of  this  high  office, 
with  that  consoling  sentence:  "Well  done,  thou  good  and  faith- 
ful servant,  because  thou  hast  been  faithful  over  a  few  things,  I 
will  place  thee  over  many !"  So  be  it  for  endless  aeons ! 


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8  The  Louisiuna  Historical  Quarterly 

Minutes  op  March  1,  K13. 
Read  by  Mr.  Paul  E.  Mortimer,  Clerk  Supreme  Court. 

The  State  of  Louisiana : 

Be  it  known  that  on  this  day,  to  wit,  on  Monday,  the  first 
day  of  March,  Anno  Domini  One  thousand  eight  hundred  and  thir- 
teen, and  in  the  thirty-seventh  year  of  the  Independence  of  the 
United  States  of  America,  the  Supreme  Court  of  the  State  of 
Louisiana  commenced  its  session  at  the  city  of  New  Orleans. 

Present,  the  Honorable  Dominick  A.  Hall  and  the  Honorable 
George  Mathews. 

Their  Honors  produced  their  respective  Commissions  from 
the  Governor  of  the  State  of  Louisiana,  which,  being  read,  were 
ordered  to  be  recorded  on  the  Minutes  of  said  Court,  and  are  in 
the  following  words,  to  wit : 

"United  States  of  America,  State  of  Louisiana. 
"William  Charles  Cole  Claiborne,  Governor  of  the 
State  of  Louisiana. 
"In  the  name  and  by  the  authority  of  the  State  of  Louisiana 
Know  ye  that  reposing  special  trust  and  confidence  in  the  Patriot- 
ism, Integrity  and  abilities  of  Dominick  Augustin  Hall,  I  have 
nominated  and  by  and  with  the  advice  and  consent  of  the  Senate, 
do  appoint  him  a  Judge  of  the  Supreme  Court  of  the  State  of 
Louisiana,  and  do  authorize  and  impower  him  to  execute  and  ful- 
fill the  duties  of  that  office  according  to  Law ;  and  to  have  and  to 
hold  the  said  office  with  all  the  powers,  privileges  and  emolu- 
ments to  the  same  of  right  appertaining,  during  good  behavior. 

"In  Testimony  whereof,  I  have  caused  these  Letters  to  be 
made  Patent,  and  the  Seal  of  the  State  of  Louisiana  to  be  here- 
unto annexed. 

"Given  under  my  hand  at  the  City  of  New  Orleans,  on  the 
Twenty-second  day  of  February,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  thirteen,  and  in  the  year  of  the  In- 
dependence of  the  United  States  of  America  the  Thirty-seventh. 

"(Signed)        William  C.  C.  Claiborne. 
"By  the  Governor. 

"(Signed)         L.  B.  Macarty, 

"Secretary  of  State. 
"I  do  certify  that  the  within  named  D.  A.  Hall  on  this  twenty- 
fifth  day  of  February,  One  thousand  eight  hundred  and  thirteen, 


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Centenary  of  The  Supreme  Court  9 

appeared  before  me  and  took  the  oath  of  of f ice  required  by  the 
Constitution  of  this  State  and  of  the  United  States. 

".(Signed)         Colsson,  Justice  of  Peace. 

"United  States  of  America,  State  of  Louisiana. 
"William  Charles  Cole  Claiborne,  Governor  of  the 
State  of  Louisiana. 
"In  the  name  and  by  the  authority  of  the  State  of  Louisiana: 

"Know  ye,  That  reposing  special  trust  and  confidence  in  the 
Patriotism,  Integrity  and  abilities  of  George  Mathews,  I  have 
nominated,  and  by  and  with  the  advice  and  consent  of  the  Senate 
do  appoint  him  a  Judge  of  the  Supreme  Court  of  the  State  of 
Louisiana,  and  do  authorize  and  empower  him  to  execute  and 
fulfill  the  duties  of  that  office  according  to  Law,  and  to  have  and 
to  hold  the  said  office  witli  all  the  powers,  privileges  and  emolu- 
ments to  the  same  of  right  appertaining  during  good  behavior. 

"In  Testimony  Whereof,  I  have  caused  these  Letters  to  be 
made  Patent,  and  the  Seal  of  the  State  to  be  hereunto  annexed. 
"Given  under  my  hand  at  the  City  of  New  Orleans,  on  the 
twenty-third  day  of  February,  in  the  year  of  Our  Lord  One  thou- 
sand eight  hundred  and  thirteen,  and  in  the  year  of  the  Inde- 
pendence of  the  United  States  of  America  the  Thirty-seventh. 

"(Signed)        William  C.  C.  Claiborne. 
"By  the  Governor. 

"(Signed)         L.  B.  Macarty, 

•  "Secretary  of  State. 
"I  do  certify  that  the  within  named  George  Mathews  did  on 
this  twenty-fifth  day  of  February,  One  thousand  eight  hundred 
and  thirteen,  appear  before  me  and  took  the  oath  of  office  re- 
quired by  the  Constitution  of  this  State  and  of  the  United  States. 
"(Signed)         COLSSON,  Justice  of  Peace." 
Adjourned  till  tomorrow  morning  11  o'clock. 


Opening  Address. 

By  Joseph  W.  Carroll,  Master  of  Ceremonies. 

Your  Honors,  Your  Excellency,  Ladies  and  Gentlemen: 

The  occasion  which  has  brought  us  together  this  morning  is 
not  only  unique  in  the  history  of  the  state,  but  is  most  interest- 
ing in  itself. 


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10  The  Louiaiana  Historical  Qtiarterly 

On  this  day,  one  hundred  years  ago,  the  Supreme  Court  of 
Louisiana  was  organized  under  the  first  Constitution  of  the  state, 
the  year  following  its  admission  to  the  Union. 

During  that  time  this  court,  with  its  constantly  varying 
membership,  has  honestly  met  its  obligations  to  the  people  of  the 
state  and  has  kept  the  judicial  ermine  unsullied  from  taint  of 
scandal  or  corruption. 

The  courts  of  the  state,  and  pre-eminently  this  court,  typify 
order  as  against  disorder,  law  as  against  lawlessness,  right  as 
against  wrong.  Under  our  system  of  government,  they  are  an 
integral  part  of  the  foundation  of  the  liberties  and  happiness  of 
the  people.  With  the  Executive  and  the  Legislature,  they  con- 
stitute the  Governmental  Trinity,  which  overlooks  and  safe- 
guards the  state  and  its  people  in  their  various  and  diverse  in- 
terests. 

Our  government  is  not  only  one  of  law,  but  of  written  law, 
and,  in  the  distribution  of  powers,  to  the  courts  has  been  allotted 
the  duty  of  construing  and  applying  these  laws  to  concrete  cases — 
even  that  most  delicate  duty  of  annulling  by  their  decrees  the 
written  law  of  the  Legislature  or  the  deliberate  act  of  the  Exe- 
cutive, whenever  such  law  or  such  act  runs  counter  to  what  the 
people  themselves  have  lawfully  decreed  in  their  Constitution  for 
the  guidance  and  limitation  of  their  servants.  The  courts  may, 
in  this  sense,  be  said  to  be  peculiarly  the  representatives  of  the 
people. 

It  is  proper,  therefore,  that  the  state,  and  the  court  itself, 
should  appropriately  notice  this  occasion,  marking,  as  it  does, 
the  completion  of  a  full  century  of  the  orderly  administration  of 
justice. 

The  people  of  the  state,  both  those  present  here  and  those 
of  that  larger  audience  of  the  press,  may  well  pause  a  few  hours 
from  the  pursuit  of  their  ordinary  occupations,  and  give  thought 
to  their  government,  to  what  it  means  to  them,  their  families, 
their  property,  that  the  laws  should  be  properly  made  and  proper- 
ly administered,  and  to  their  own  responsibility  for  any  short- 
comings in  either. 

The  layman  is  prone  to  think  and  say  that  the  courts  gen- 
erally are  too  far  removed  from  the  people,  and  that  judicial 
decisions  do  not  respond  readily  enough  to  the  advancing  ideas  of 
the  people  at  large.   They  forget  that  courts  are  established  to 


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administer  and  not  to  create  the  law.  It  is  not  for  a  court  to  be 
influenced  by  every  passing  sound,  however  loud  or  insistent. 

Precedent  must,  perforce,  be  the  foundation  of  every  stable 
jurisprudence,  and  precedent  is  a  thing  of  yesterday  and  not  of 
today.  It  would  be  neither  wise  nor  just  to  measure  the  rights  of 
today  by  other  than  the  yardstick  of  yesterday,  without  fair  no- 
tice to  all— a  notice  which  should  come  from  the  lawmaking  power 
rather  than  the  courts. 

There  will  be  those  who  will  speak  to  you  of  the  bench,  the 
jurisprudence,  and  the  bar,  and  I  shall  usurp  their  time  but 
little  longer. 

Among  those  who  once  sat  upon  that  bench,  some  thirty  years 
ago,  was  Edward  Douglas  White,  now  Chief  Justice  of  the  United 
States.  He  and  former  Justice  Blanchard  are  the  only  surviv- 
ing ex- justices.  The  court  had  hoped  to  have  the  former  with 
us  today,  but  higher  duties  have  prevented.  He  has  however, 
sent  an  eloquent  message  addressed  to  Mr.  H.  Gibbes  Morgan  of 
the  Committee  of  the  Bar,  which  I  shall  read : 

"Washington,  D.   C, 

"February  4,  1913. 
"H.  Gibbes  Morgan,  Esq.,  New  Orleans,  La. 

"My  Dear  Sir:  I  am  deeply  sensible  of  the  kindness  of  the 
Committee  of  *One  Hundred  Lawyers'  appointed  to  make  appro- 
priate arrangements  for  the  celebration,  on  March  the  1st  next, 
of  the  'Centenary  of  the  Supreme  Court  of  the  State,*  and  much 
regret  that  I  am  constrained  to  say  that  I  cannot  give  myself 
the  privilege  of  accepting. 

"At  the  time  fixed  the  situation  as  to  the  work  of  the  court 
here  will  be  such  as  to  imperatively  forbid  that  I  absent  myself 
from  Washington.  Moreover,  as  the  duty  rests  upon  the  Chief 
Justice  of  the  United  States  to  administer  the  oath  of  office  to 
the  President-elect  on  the  morning  of  the  4th  of  March,  it  seer 
to  me  it  would  be  very  imprudent  for  me  to  absent  myself  from 
Washington  at  a  time  so  near  the  date  of  the  inaugural  cere- 
mony. 

"I  earnestly  hope  the  commemorative  ceremonies  will  prove 
worthy  of  the  occasion,  arid  that  they  may  serve  to  refreshen  the 
memory  of  every  Louisianian  concerning  the  blessings  which  have 
been  bestowed  upon  the  state  by  the  faithful  discharge  by  the 
court  of  the  great  duties  which  rest  upon  it.    Indeed,  I  trust  that 


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12  The  Louisiana  Historical  Quarterly 

the  ceremonies  may  not  only  do  this,  but  may  serve  to  revivify  and 
strengthen  in  the  hearts  and  minds  of  all  the  purpose  to  sustain 
and  perpetuate  the  court,  and  thus  guarantee  individual  freedom 
and  representative  government  by  safeguarding  the  life,  liberty, 
and  happiness  of  all. 

"May  I  ask  you  to  convey  to  the  general  committee  my  ap- 
preciation of  the  generous  consideration  which  they  have  shown 
me  by  extending  their  invitation,  and  to  accept  for  yourself  per- 
sonally my  warm  thanks  for  the  all  too  kindly  and  generaus  words 
in  which  you  have  conveyed  the  invitation. 
"Always  faithfully  yours, 

"(Signed)         E.D.White. 

It  now  gives  me  pleasure  to  introduce,  for  an  Address  of 
Welcome,  one  who  really  needs  no  introduction  to  this  audience, 
his  Excellency,  the  Governor. 


Address  of  Welcome. 

By  Governor  Luther  E.  Hall. 

Your  Honors,  Gentlemen  of  the  Bar,  Ladies  and  Gentlemen : 

I  esteem  it  a  very  high  as  well  as  most  pleasant  privilege  to 
participate  in  the  ceremonies  attending  the  centennial  celebration 
of  the  organization  of  the  Supreme  Court  of  this  state. 

A  centut-y  is  a  short  time  in  the  history  of  a  state,  as  history 
goes,  but  on  this  side  of  the  Atlantic  the  swift  tread  of  a  free  peo- 
ple has  brought  forth  a  record  of  great  accomplishment  and  pro- 
gress that  has  excited  the  wonder  and  admiration  of  the  civilized 
world.  The  story  of  Louisiana — ^the  pride  of  Spain,  the  hope  of 
France,  the  glory  of  the  American  republic,  and  the  mother  of 
great  commonwealths — will  echo  down  the  ages  with  ever  in- 
creasing interest. 

Looking  back  to  the  days  of  Mathews,  of  Martin,  and  of 
Porter,  and,  recalling  the  part  this  court  has  played,  no  Louis- 
ianian  need  be  ashamed  of  the  record.  It  has  not  lacked  great 
minds  or  rugged  integrity  or  devotion  to  truth  and  justice,  nor 
has  it  failed  in  meeting  the  vicissitudes  of  fortune  or  the  diffi- 
cult and  stormy  periods  of  its  existence.  Perhaps  no  court  has 
had  more  difficult  problems  to  solve  or  more  trying  occasions  to 
confront.  Through  its  portals  have  come  the  imperishable  prin- 
ciples of  the  civil  law  as  interpreted  and  developed  by  the  genius 


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of  the  French  jurisconsults,  and  its  decisions  hav^  had  an  in- 
fluence in  the  molding  of  the  jurisprudence  of  other  states  accord- 
ed to  but  few  other  state  judiciaries.  A  past  so  full  of  inspira- 
tion ought  to  make  for  higher  ideals  and  wider  standards.  Re- 
trospection is  vain  if  it  leads  to  no  reflection  and  affords  us  no 
promise  for  the  future. 

Nowhere  in  the  world  has  the  judge  been  crowned  as  he  has 
been  in  America.  Here  he  has  been  intrusted  with  power  given  to 
no  other  man.  It  has  been  his  province  and  duty  to  protect  the 
independence  of  the  three  great  departments  of  our  national  as 
well  as  state  governments  and  to  preserve  the  rights  and  liberties 
of  the  people.  The  people  have  bowed  to  his  decisions  and  have 
honored  him.  They  have  forgiven  some  human  lapses  and  ac- 
cepted some  flagrant  departures  from  the  right  as  honest  errors. 
In  their  hearts  they  have  transferred  "the  divinity  that  doth 
hedge  a  king"  to  the  judge,  and  marched  forth  satisfied  with  the 
general  result.  No  man  has  so  enjoyed  their  homage.  Has  he, 
the  judge,  in  any  measure  lost  this  confidence  and  respect?  This 
is  a  question  which,  at  such  a  time  as  this,  should  arouse  serious 
thought. 

If  a  change  has  come  or  is  coming  over  the  people,  there 
must  be  causes,  and  the  members  of  the  judiciary  should  seek 
carefully  to  ascertain  and  remove  the  sources  of  irritation. 
Judges  cannot  draw  around  themselves  their  robes  of  dignity  and 
look  on  with  indifference  while  the  people  complain.  The  per- 
manence of  our  free  institutions  depends  upon  the  confidence 
the  people  have  in  the  incorruptibility  of  their  courts.  It  is  to  the 
courts  that  they  must  go  for  an  interpretation  of  their  organic 
as  well  as  statute  laws  and  for  the  vindication  of  their  private 
rights.  "In  despotic  governments,"  says  Montesquieu,  "there  are 
no* laws,  the  judge  himself  is  his  own  rule.  *  *  *  In  republics 
the  very  nature  of  the  constitution  requires  the  judges  to  follow 
the  letter  of  the  law;  otherwise,  the  law  might  be  explained  to 
the  prejudice  of  every  citizen  in  cases  where  their  honor,  prop- 
erty, or  life  is  concerned." 

When  the  people  believe  that  their  judges,  in  the  determina- 
tion of  cases,  consult  the  wishes  of  powerful  political  and  other 
interests  and  not  the  law ;  when  they  believe  that  their  laws  are 
iset  aside  or  twisted  and  distorted  by  construction  to  subserve  the 
purposes  of  such  favored  interests;  and  when  they  believe  that 


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14  The  Louisiana  Historical  Qtuirterly 

all  men  are  not  equal  before  the  law  as  administered  by  the 
courts — ^then  all  faith  in  the  established  form  of  government  will 
have  been  lost  and  new  and  dangerous  experiments  will  be  at- 
tempted. 

There  is  more  light  than  in  former  days.  Powerful  rays  are 
illuminating  the  innermost  recesses  of  places  of  power  in  every 
department  of  government.  Printed  messengers  are  carrying 
into  every  household  facts  as  well  as  theories.  Where  there  was 
but  one  pen  that  could  correctly  analyze  an  opinion  of  Marshall, 
there  are  thousands  today  that  can  correctly  tell  millions  of 
readers  the  full  scope  of  a  decree  announced  by  any  court  in 
the  land. 

"The  fierce  white  light  that  beats  upon  a  throne"  is  but  as 
a  candle  to  the  searchlight  that  now  throws  its  rays  upon  the 
bench.  It  penetrates  the  gown,  the  garment,  and  through  the 
very  bones  of  the  man  who  expounds  the  law  in  high  places.  To 
live  in  this  light  and  retain  the  love  and  respect  of  the  people,  and 
while  speaking  with  authority  to  hold  the  loyal  devotion  of  the 
past,  a  judge  must  have  more  than  learning  or  talent  or  even 
genius  itself.  He  must  have  manhood,  broad  humanity,  sturdy 
honesty,  and  unswerving  devotion  to  right  and  justice.  Platitudes, 
pretenses  of  patriotism,  and  tricks  of  logic  shrivel  in  this  light 
like  moths.  These  -cannot  stand  as  law  in  the  great  forum  of  the 
people  any  more  than  in  the  lesser  but  more  learned  tribunals 
of  the  bar. 

While  assembled  here  in  good  fellowship  and  in  profound 
respect  for  our  high  court,  now  celebrating  its  centennial,  let  us 
wish  each  member  of  it  good  health  and  happiness,  and  indulge 
the  confident  hope  that  it  will  grow  in  the  confidence  and  esteem 
of  the  people,  that  correct  standards  will  always  be  maintained, 
that  the  principles  of  the  civil  law  will  be  preserved  in  essential 
purity,  and  that  our  jurisprudence  will  answer  at  all  times 
to  the  old  definition  in  that  it  will  be  truly  the  science  of  what 
is  just  and  what  is  unjust. 


The  History  of  the  Supreme  Court  of  Louisiana. 

By  Henry  Plauche  Dart,  of  the  New  Orleans  Bar. 

In  any  historical  survey  of  a  court  of  last  resort  the  subject 
divides  itself  naturally,  as  Csesar  divided  all  Gaul,  into  three  parts. 


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Centenary  of  The  Supreme  Court  15 

The  committee  in  charge  of  this  ceremony  has,  in  this  spirit, 
separated  the  topic  of  the  day  into  the  court,  its  jurisprudence, 
and  its  bar,  and  has  assigned  a  speaker  to  each  division  of  the 
general  subject.  The  first  subsection  has  fallen  to  my  hands,  and 
I  shall  treat  as  rapidly  and  succinctly  as  possible  the  constitu- 
tional, legislative,  and  judicial  history  of  the  court,  with  passing 
reference  to  the  judges  of  the  same.  Of  course,  the  limitations 
of  time  and  a  due  concern  for  the  rights  of  those  who  follow 
would  reduce  the  tale  to  a  most  meager  limit,  and  therefore  I 
have  been  asked  to  present  orally  the  substance  of  the  topic  and 
to  preserve  the  manuscript  for  future  use. 

Before  entering  upon  the  history  of  the  Supreme  Court  it 
may  be  useful  and  interesting  to  tell  the  story  of  the  two  courts 
v/hich  to  a  certain  extent  held  the  same  position  in  the  territorial 
period.  Indeed,  from  these  lineal  predecessors  of  the  Supreme 
Court  that  tribunal  inherited  certain  judicial  features  and 
methods  of  procedure  which  may  be  said  to  make  an  umbilical 
connection  between  the  two  systems. 

I.  The  Governor's  Court,  1803-4. 

The  Louisiana  Territory  ceded  by  France  was  taken  over  by 
the  United  States  under  the  authority  of  the  act  of  Congress  of 
October  31,  1803,  which,  among  other  things,  provided  that  all 
the  military,  civil,  and  judicial  powers  exercised  by  the  officers 
of  the  existing  government  should  be  exercised  temporarily  by 
such  person  or  persons  and  in  such  manner  as  the  President  of 
the  United  States  should  direct,  for  the  purpose  of  maintaining 
and  protecting  the  inhabitants  of  Louisiana  in  the  full  enjoy- 
ment of  their  liberty,  property,  and  religion.  (2  Statutes  at 
Large,  245.) 

Under  this  authority  President  Jefferson  appointed  James 
Wilkinson,  General  of  the  United  States  Army,  and  William  C.  C. 
Claiborne,  then  Governor  of  Mississippi  Territory,  Commission- 
ers to  receive  delivery  on  behalf  of  the  United  States,  and  on 
December  20,  1803,  these  Commissioners  took  possession  of  the 
country  covered  by  the  cession. 

In  addition  to  the  powers  conferred  upon  the  two  Commis- 
sioners, the  President  gave  Claiborne  a  commission  "authorizing 
him  provisionally  to  exercise  within  the  ceded  territory  all  the 
powers  with  which  the  Spanish  Governor  General  and  Intendant 


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16  The  Louisiana  Historical  Quarterly 

were  clothed,  except  that  of  granting  lands.''    (Martin's  History, 
Howe's  Edition,  295.) 

Claiborne  was  a  Virginian  who  had  been  admitted  to  the 
bar  in  Tennessee,  and  at  this  moment  was  about  twenty-eight 
years  old.  Referring  to  his  appointment,  Gayarre  says  (4  His- 
tory of  Louisiana,  pp.  1-3) : 

"The  immediate  effect  of  that  cession  was  to  vest  all  the 
powers  of  the  defunct  government  (a  sort  of  Gallic  and  Spanish 
hybrid  (  in  Governor  Claiborne,  until  Congress  should  legislate 
on  the  organization  of  the  government  of  the  new  territory.  Thus 
this  officer,  as  he  informed  the  inhabitants  in  a  set  proclama- 
tion, had  suddenly  become  the  Governor  General  and  the  Inten- 
dant  of  Louisiana,  uniting  in  his  person  all  the  authority  severally 
possessed  by  those  two  functionaries  under  the  despotic  govern- 
ment of  Spain.  Well  might  he  be  astonished  at  the  strange  posi- 
tion in  which  he  was  placed,  for  he,  a  republican  magistrate, 
found  himself  transformed  into  an  absolute  proconsul  in  whom 
centered  all  the  executive,  judicial,  and  legislative  authority  lately 
erercised  in  their  respective  capacities  by  the  superseded  Spanish 
dignitaries. 
♦     ♦     ♦       ♦ 

"Claiborne's  first  measure  was  to  organize  the  judiciary,  and 
he  established,  on  the  30th  of  December,  1803,  a  Court  of  Pleas 
composed  of  seven  justices.  Their  civil  jurisdiction  was  limited 
to  cases  not  exceeding  in  value  three  thousand  dollars,  with  the 
right  of  appeal  to  the  Governor  when  the  amount  in  litigation 
rose  above  five  hundred  dollars.  That  tribunal  was  also  vested 
with  jurisdiction  over  all  criminal  cases  in  which  the  punishment 
did  not  exceed  two  hundred  dollars  and  sixty  days'  imprison- 
ment. Each 'of  these  seven  justices  was  clothed  individually  with 
summary  jurisdiction  over  all  debts  under  one  hundred  dollars, 
reserving  to  the  parties  an  appeal  to  the  Court  of  Pleas ;  that  is, 
to  the  seven  justices  sitting  together  in  one  court."  (Id.) 

Under  this  system  it  appears  the  Governor  retained  original 
jurisdiction  in  all  civil  and  criminal  matters,  save  as  qualified, 
and  also  appellate  civil  jurisdiction  over  the  Court  of  Common 
Pleas. 

In  assuming  these  judicial  powers  the  Governor  conceived 
that  he  was  acting  within  the  scope  of  his  appointment.  There  is 
no  reasonable  ground  for  doubt  the  Spanish  Governor  General 


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Centenary  of  The  Supreme  Court  17 

and  Intendant  had  exercised,  each  in  his  own  department,  the 
same  judicial  powers  in  civil,  criminal,  and  admiralty  matters, 
and  it  is  also  true  that  they  were  the  sole  judges  in  their  several 
courts.  (Martin,  212.)  These  officers,  however,  consulted  with 
and  were  advised  by  a  legal  assistant,  who  was,  roughly  speak- 
ing, an  attorney  general  to  the  court. 

The  commission  from  Jefferson  clearly  vested  in  Claiborne 
the  powers  that  had  previously  been  exercised  by  each  of  these 
officials.  It  cannot  be  controverted,  however,  that  the  greater 
part  of  the  civil  and  criminal  concerns  of  Spanish  times  had 
passed  through  other  functionaries,  and  that  in  New  Orleans  par- 
ticularly the  Cabildo  was  the  court  nearest  to  the  people.  (Id. 
210.)  Although  the  Governor  General  sat  therein  or  had  the 
right  so  to  do,  the  average  litigant  felt  the  influence  of  a  number 
of  persons  thus  sitting  as  judges  and  participating  in  final  judg- 
ments. Under  this  method  the  dead  weight  of  a  one-man  court 
had  not  fallen  upon  the  litigant,  as  it  now  fell  under  Claiborne's 
system. 

Contemporary  history  proves  that  no  other  act  of  the  Gov- 
ernor caused  more  dissension  than  this  creation  of  the  Governor's 
Court.  Unfortunately  Claiborne  could  not  use  either  of  the  pri- 
mary tongues  of  the  people ;  indeed,  it  is  said  that  at  this  time  he 
had  not  acquired  a  reading  knowledge  of  either  French  or  Span- 
ish, nor  does  it  appear  that  he  was  able  to  call  to  his  aid  any 
person  having  at  once  the  languages  and  the  professional  skill. 
He  has  written  of  this  experience  that  he  tried  to  apply  to  each 
case  his  knowledge  of  law  and  his  view  of  equity  and  justice.  It 
is  probable  that  the  same  complaint  would  have  been  made 
against  any  judge  named  by  him,  had  he  possessed  the  right  to 
substitute  a  regularly  organized  court  in  his  stead — a  power 
which,  under  the  letter  of  his  appointment,  seems  not  to  have 
been  granted. 

Considering  that  in  its  elements  the  Spanish  rule  did  vest 
great  and  unusual  power  in  the  Governor  General  and  Intendant, 
the  complaint  against  Claiborne  for  exercising  the  same  powers 
can  only  be  explained  by  the  factious  spirit  of  criticism  started 
by  the  French  agent,  Laussat,  and  assiduously  cultivated  by  de- 
posed office  holders  and  disgruntled  land  speculators.  There  was 
undoubtedly  a  reasonable  ground  of  complaint  on  the  part  of  the 
American  element  because  they  were  emigrants  from  a  country 


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where  such  power  was  unknown.  The  effect  of  these  argruments 
was  to  create  among  the  Creoles  a  feeling  of  fear  and  distrust  of 
the  American  government,  and  all  parties  joined  in  an  effort  for 
a  change.  Public  opinion  was  whipped  to  a  white  heat  by  mass 
meetings  and  discussions,  in  which  every  evil  motive  was  attri- 
buted to  the  President,  to  Congress,  and  to  the  local  officers.  The 
act  of  1803  was  confessedly  temporary,  but  its  duration  was 
shortened  by  these  appeals. 

On  March  26,  1804  (2  Statutes  at  Large,  277),  Congress 
divided  the  Louisiana  Purchase  into  two  territories,  and  gave 
the  name  of  Orleans  to  all  that  section  lying  south  of  the  thirty- 
third  degree  of  north  latitude,  on  the  west  side  of  the  Mississippi 
river,  and  south  of  the  Mississippi  Territorry  on  the  east  side. 
Besides  providing  for  the  appointment  by  the  President  of  a  Gov- 
ernor and  a  Secretary,  provision  was  also  made  for  the  appoint- 
ment by  him  of  a  Legislative  Council  of  thirteen  "of  the  most  fit 
and  discreet  persons  of  the  Territory,"  and,  most  important  of  all, 
for  the  appointment  of  a  Superior  Court. 

The  judicial  power  was  vested  in  this  Superior  Court  and  in 
such  inferior  courts  as  the  Legislature  might  from  time  to  time 
establish.  The  Superior  Court  was  composed  of  three  judges, 
any  one  of  whom  should  constitute  a  court,  to  hold  office  for  four 
years.  It  was  vested  with  jurisdiction  in  all  criminal  cases,  and 
exclusive  jurisdiction  in  all  those  which  were  capital,  and  original 
and  appellate  jurisdiction  in  all  civil  cases  of  the  value  of  one 
hundred  dollars.  All  capital  cases  were  to  be  tried  before  "a 
Jury  of  twelve  good  and  lawful  men  of  the  vicinage,"  and  in  all 
cases,  criminal  and  civil,  in  said  court  the  trial  should  be  by  jury, 
if  either  of  the  parties  required  it. 

The  salaries  of  the  judges  were  fixed  at  $2,000  per  annum, 
payable  quarterly  out  of  the  revenues  of  impost  and  tonnage  ac- 
cruing within  the  territory. 

The  laws  in  force  in  the  territory  not  inconsistent  with  this 
act  were  continued  in  force  until  altered,  modified,  or  repealed  by 
the  Legislature;  and  the  act  of  October  31,  1803,  was  continued  in 
force  until  October  1,  1804,  on  which  day  the  act  of  March  26, 
1804,  was  to  take  effect  and  to  continue  for  one  year  and  until 
the  end  of  the  next  session  of  Congress  thereafter. 

By  virtue  of  these  provisions  the  Supreme  Court,  as  Clai- 
borne called  it,  or  Governor's  Court  of  the  Territory  of  Orleans, 


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as  it  is  known  in  history,  maintained  its  existence  for  about  one 
year,  and  until  the  Superior  Court  was  organized  on  November  9, 
1804.  The  records  of  the  former  court  were,  on  March  7,  1805 
(chapter  XVI,  p.  86,  Laws  of  Orleans  Territory,  1805),  ordered 
to  be  transferred  to  the  office  of  the  Clerk  of  the  Superior  Court 
of  the  Territory. 

As  changes  in  our  judicial  system  have  occurred,  the  archives 
of  abandoned  courts  have  been  transferred  from  room  to  room, 
until  finally  no  man  was  left  who  could  remember  the  hiding 
place  or  graveyard  of  the  records  of  the  early  courts.  During 
the  past  twelve  months  a  search  has  been  in  progress  by  the  Clerk 
of  the  Civil  District  Court,  assisted  by  a  committee  of  lawyers 
appointed  by  the  Judges,  and  records  innumerable  have  been  re- 
covered and  removed  to  the  Archive  Room  of  this  building. 

Among  these  records,  and  almost  the  last  to  be  found,  we 
have  gathered  a  nearly  complete  file  of  the  Superior  Court  of  the 
Territory,  and  a  few  from  the  Governor's  Court.  Out  of  the  lat- 
ter we  have  taken  a  case  which  seems  to  be  a  typical  represen- 
tative of  the  practice  before  Claiborne  sitting  as  sole  Judge.  This 
was  an  original  suit  filed  May  23,  1804,  by  Anselme  Coudrain 
against  Jean  Bagneris,  to  recover  from  a  curator  or  tutor  the 
proceeds  of  a  wasted  estate.  It  is  in  the  form  of  a  bill  in  equity, 
and  was  evidently  drawn  by  a  careful  pleader  in  that  system.  Its 
caption  reads,  "In  the  Court  of  His  Excellency,"  and  it  is  ad- 
dressed as  follows :  "To  His  Excellency,  William  C.  C.  Claiborne, 
Governor  of  the  Mississippi  Territory,  exercising  the  powers  of 
Governor  General  and  Intendant  of  the  Province  of  Louisiana." 
It  is  No.  87  of  the  Superior  Court  of  the  Territory  of  Orleans,  and 
was  evidently  removed  into  that  court  under  the  terms  of  the 
act  just  quoted. 

It  seems  from  all  evidence  attainable  that  Claiborne  exercised 
in  this  court  the  judicial  powers  of  his  predecessors  and  the  usual 
authority  of  an  American  law  court,  and  he  added  thereto  the 
equitable  jurisdiction  of  the  English  chancellor.  It  is  doubtful 
whether  any  man  ever  possessed  in  this  country  so  much  supreme 
power,  being  at  once  the  lawmaker,  the  ruler,  and  the  judge  of 
last  resort.  He  therefore  holds  a  unique  position  in  American 
judicial  history. 

Claiborne  was  a  voluminous  writer  of  diaries  and  reports, 
but  this  material  is  scattered  and  only  a  small  portion  of  it  has 


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'20  The  Louisiana  Historical  Quarterly 

been  printed.  When  the  opportunity  serves  to  rewrite  the  story 
of  the  Governor's  Court  in  the  light  to  be  afforded  by  a  study 
of  his  writings  and  the  archives  of  the  court,  a  distinct  addition 
may  be  made  to  the  sum  of  human  knowledge.  Until  this  shall 
have  been  done  the  historian  must  suspend  judgment  on  the  con- 
temporary charge  of  usurpation,  ignorance,  and  maladministra- 
tion urged  against  that  magistrate ;  for  he  is,  at  least,  entitled  to 
the  benefit  of  the  presumption  of  law  which  attaches  to  the  ac- 
tions of  all  officers. 

II.  The  Superior  Court  of  the  Territory  of 
Orleans,  1804-1813. 

President  Jefferson  appointed  Duponceau,  of  Pennsylvania; 
Kirby,  of  Connecticut;  and  Prevost,  of  New  York — ^to  form  the 
Superior  Court  of  Orleans  created  by  the  act  of  March  26,  1804, 
whose  provisions  have  just  been  noticed.  The  first-named  de- 
clined; the  second  died  en  route  to  New  Orleans,  after  accepting 
and  before  the  organization  of  the  court ;  and  the  third,  John  Bar- 
tow Prevost,  accepted  and  organized  the  court  in  New  Orleans  on 
Monday,  November  5,  1804.  He  was  the  son  of  a  British  officer 
of  the  Revolution,  whose  widow  had  married  Aaron  Burr,  Jef- 
ferson's competitor  for  the  Presidency  and  Vice  President  during 
his  first  term.  At  the  time  of  Prevost's  appointment  he  was 
holding  a  judicial  office  in  New  York  City. 

The  first  session  of  the  Superior  Court  was  held  at  the 
City  Hall  in  New  Orleans,  which  was  probably  the  American 
designation  of  the  building  now  called  the  Cabildo,  the  generic 
name  for  the  municipal  organization  under  the  Spanish  regime. 

The  vacancies  on  the  bench  were  not  filled,  and  Prevost  held 
court  alone  until  1806 ;  that  is,  until  after  the  act  of  Congress  of 
March  2,  1805,  went  into  operation.  2  Statutes  at  Large,  322.  By 
this  act  a  new  form  of  government  was  established  for  the  terri- 
tory, to  be  modeled  on  the  one  then  existing  in  the  adjoining 
Mississippi  Territory.  Provision  was  made  for  the  appointment 
by  the  President  of  the  officers,  who  were  to  be  as  prescribed  in 
the  Ordinance  of  1787  for  the  government  of  the  Northwest  Ter- 
ritory. 

An  elective  general  assembly  was  created,  which  was  com- 
posed of  twenty-five  representatives.  The  people  were  vested 
with  all  the  rights,  privileges,  and  advantages  possessed  by  the 
adjoining  territory,  save  that  the  Statute  of  Descent  and  Distri- 


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bution  and  the  Sixth  Article  of  the  Compact  in  the  Northwest  Or- 
dinance  should  not  apply.  The  act  of  March  26,  1804,  was  re- 
pealed in  so  far  as  it  was  in  conflict  with  this  act  to  take  effect 
on  and  after  November  1,  1805. 

No  change  was  made  in  the  Superior  Court  system,  and  the 
vacancies  on  that  bench  were  filled  by  the  appointment  of  Wil- 
liam Sprigg,  of  Ohio,  and  George  Mathews,  Jr.,  of  Georgia,  whose 
service  began  early  in  1806.  Prevost  seems  to  have  retired  to- 
ward the  end  of  that  year  possibly,  as  suggested  by  Claiborne  on 
an  earlier  occasion,  because  the  judge  had  a  large  family  and 
could  not  support  himself  on  the  meager  salary  of  the  office.  He 
practiced  law  here  for  many  years  thereafter.  Joshua  Lewis,  of 
Kentucky,  took  Prevost's  place  in  January,  1807.  Sprigg  retired 
in  1808,  and  was  succeeded  by  John  Thompson,  of  Orleans,  in  that 
year.  He  died  in  1810,  and  Frangois-Xavier  Martin,  of  North 
Carolina,  was  appointed  in  his  stead  on  March  10,  1810.  Judge 
Martin  was  at  the  time  of  his  appointment  serving  as  judge  in  the 
adjoining  Mississippi  Territory. 

We  have  no  printed  reports  of  the  work  of  the  court  earlier 
than  the  fall  session  of  1809.  Its  archives  had  been  lost — ^that  is, 
no  one  knew  what  had  become  of  them — ^but  quite  recently  a 
number  of  its  records  were  discovered  under  the  accumulated 
rubbish  of  a  century,  in  a  corner  of  an  attic  in  the  old  Civil 
Court  Building  at  Jackson  Square.  These  records  have  been  re- 
moved into  the  new  Court  Building  and  are  now  being  restored 
and  arranged  by  the  clerk  of  the  last-named  court.  The  student 
of  the  origins  of  our  judicial  system  may  doubtless  find  here  a 
rich  reward  for  his  patient  labor. 

Upon  the  accession  of  Martin  in  1810  he  was  troubled  by 
"the  dearth  of  correct  information  in  regard  to  the  deci- 
sions of  the  court  before  his  arrival,"  and  he  set  about  the  prepa- 
ration for  publication  of  the  cases  argued  in  his  time  and  that 
immediately  preceding  his  appointment.  He  added  the  instinct 
of  a  reporter  to  the  experience  of  a  practical  printer.  Th^  two 
erudite  volumes  (1  and  2  Martin,  Old  Series)  which  were  printed 
under  his  supervision  in  New  Orleans  in  1811  and  1813  are  still 
resorted  to  as  authority.  Indeed,  they  are  a  mine  of  the  old  learn- 
ing. The  title  page  of  both  volumes  carrier  an  extract  from  the 
instructions  of  the  Empress  of  Russia  to  the  commission  which 
she  created  to  codify  the  laws  of  that  empire: 


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22  The  Louisiana  Historical  Qtiarterly 

"Courts  render  decisions;  these  should  be  treasured;  they 
should  be  circulated,  so  that  the  judgment  of  today  will  be  as 
that  of  yesterday,  and  so  that  the  property  and  life  of  citizens 
should  be  as  certain  and  fixed,  even  as  the  Constitution  of  the 
state." 

Martin  continued  to  publish  the  reports  of  the  Supreme 
Court  of  Louisiana  until  1830,  and  each  title  page  bears  some 
quaint  citation  of  this  kind.  The  committee  in  charge  of  this  cele- 
bration has  preserved  one  of  these  on  the  memorial  now  before 
you.  It  is  an  epigram  from  Cicero's  oration  in  defense  of  Sulla : 
"Status  enim  reipublic»  maximce  judicatis  rebus  continetur,"  or, 
roughly  paraphrased,  "The  welfare  of  the  state  depends  greatly 
upon  the  respect  for  settled  decisions." 

An  essay  might  be  written  on  the  relation  between  these 
maxims  and  aphorisms  of  the  law,  and  the  substance  and  style 
of  the  literary  matter  of  Martin's  opinions. 

In  the  preface  to  the  first  volume  Judge  Martin  announces 
convictions  which  we  may  well  believe  were  also  the  opinions  of 
his  associates.  They  merit  perpetuation  here  as  part  of  the  his- 
tory of  our  judicial  system. 

Referring  to  the  difficulties  of  their  task  and  the  small  num- 
ber of  the  judges,  and  the  remote  places  in  which  they  sat,  mak- 
ing it  often  impossible  for  more  than  one  judge  to  be  present,  he 
says: 

"It  has  been  indispensable  to  allow  a  quorum  to  consist  of  a 
single  judge,  who  often  finds  himself  compelled,  alone  and  unaid- 
ed, to  determine  the  most  intricate  and  important  questions,  both 
of  law  and  fact,  in  cases  of  greater  magnitude  as  to  the  object 
in  dispute  than  are  generally  known  in  the  state  courts;  while 
from  the  jurisprudence  of  this  newly  acquired  territory,  possessed 
at  different  periods  by  different  nations,  a  number  of  foreign 
laws  are  to  be  examined  and  compared,  and  their  compatibility 
with  the  general  constitution  and  laws  ascertained,  an  arduous 
task  anywhere  but  rendered  extremely  so  here  from  the  scarcity 
of  the  works  of  foreign  jurists.  Add  to  this,  that  the  distress 
naturally  attending  his  delicate  situation  is  not  a  little  increased 
by  the  dreadful  reflection  that,  if  it  should  be  his  misfortune  to 
form  an  incorrect  conclusion,  there  is  no  earthly  tribunal  in 
which  the  consequences  of  his  error  may  be  redressed  or  lessened." 

Feeling  that  the  decisions  might  not  receive  elsewhere  that 


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Centenary  of  The  Supreme  Court  23 

recognition  which  older  courts  enjoyed,  he  modestly  confines  his 
usefulness  to  his  own  field,  and  as  to  this  with  equal  modesty  he 
says: 

"It  is  true  that  no  judge  in  deciding  any  future  question  will 
think  his  conscience  bound  by  the  opinion  of  any  one  of  his 
brethren  or  any  number  of  them  less  than  a  majority,  but  he 
may  derive  aid  or  confidence  from  the  knowledge  of  anterior  de- 
cisions, the  arguments  of  counsel,  and  the  opinions  of  another 
judge  in  points  on  which  he  has  to  decide.  In  matters  of  practice 
he  will  at  times  conform  himself  to  what  has  been  already  done, 
though  had  there  been  no  determination  he  might  have  sus- 
pended his  assent." 

It  was  fortunate  for  the  new  state  that  for  eight  years  ante- 
rior to  its  entry  into  the  Union  men  holding  such  sentiments  had 
been  in  position  to  lay  the  foundations  of  its  law.  Two  of  these 
Judges,  Mathews  and  Lewis,  were  of  scholarly  instincts  and  had 
been  trained  in  the  common  law.  On  their  accession  to  the  bench 
they  knew  little  French  and  nothing  whatever  of  the  civil  law. 
Martin,  considered  from  any  angle,  was  a  profound  scholar.  His 
legal  mind  had  also  been  formed  in  the  common-law  field,  but  he 
had  the  advantage  of  the  language  of  his  birthplace  (France), 
and  he  had,  besides,  studied  the  masters  of  the  civil  law  con 
amore;  indeed,  it  is  said  that  his  edition  of  Pothier  on  Obliga- 
tions was  translated  from  book  to  type  at  his  printer's  case  in 
North  Carolina.  This  early  American  imprint  is,  by  the  way,  one 
of  the  rare  treasures  of  the  legal  bibliophile. 

The  act  creating  the  territory  of  Orleans  did  not  in  words 
impose  the  common  law,  and,  on  the  contrary,  left  the  Governor 
and  Legislative  Council  free  to  prescribe  in  all  matters  not  in- 
consistent with  the  enabling  act.  President  Jefferson,  however, 
was  very  anxious  to  bring  the  territory  into  legal  harmony  with 
the  other  states,  and  under  his  suggestion  Governor  Claiborne 
exerted  himself  to  impress  the  common  law  in  all  its  features 
upon  the  new  judiciary. 

The  territory  was  divided  by  the  Governor  and  Legislative 
Council,  in  April  1805,  into  twelve  counties,  namely,  Orleans,  Ger- 
man Coast,  Acadia,  La  Fourche,  Iberville,  Pointe  Coup6e,  Ata- 
capas,  Opelousas,  Natchitoches,  Rapides,  Ouachita,  and  Con- 
cordia. A  county  court  of  one  judge  was  assigned  to  each,  and 
contested  cases  were  triable  by  jury,  and  their  verdict  was  "con- 


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24  The  Louisiana  Historical  Quarterly 

elusive  between  the  parties  as  to  the  facts  thereby  decided."  The 
judge  decided  all  points  of  law  on  such  jury  trials,  and  provision 
was  made  for  a  bill  of  exceptions  to  cover  the  facts  on  which 
such  question  of  law  was  raised  and  decided.  See  Laws  of  1805, 
First  Session,  chap.  25,  pp.  144-209,  approved  April  10,  1805, 
particularly  section  6  thereof. 

By  sections  16  and  17  of  this  act  the  right  of  appeal  was 
granted  to  the  Superior  Court,  on  which  appeal  the  case  was 
to  be  heard  on  the  original  pleadings,  but  either  party  could 
produce  new  proofs  in  that  court,  and  could  also  amend  his 
pleadings  "so  as  to  bring  the  merits  of  the  case  completely  before 
them,"  and  the  appellate  court  was  authorized  to  "give  such 
judgment  as  the  nature  of  the  case  may  require,  and  to  issue 
execution  thereon." 

On  the  same  day,  April  10,  1805,  an  act  was  signed  "Regulat- 
ing the  Practice  of  the  Superior  Court  in  Civil  Causes."  This 
statute  and  the  one  previously  discussed  are  familiarly  regarded 
as  the  lineal  predecessors  of  our  Code  of  Practice,  which  as- 
similated the  elements  of  both  statutes. 

In  this  Superior  Court  act  the  requirement  of  trial  by  jury 
became  optional  with  the  parties  and  the  right  was  conferred  on 
the  court  to  grant  a  new  trial  whenever  "it  shall  appear  that 
justice  has  not  been  done."  The  court  was  also  granted  power 
to  make  rules  for  regulating  the  practice,  not  inconsistent  with 
the  laws  of  the  territory.  See  Laws  of  1805,  First  Session,  chap. 
26,  pp.  210-260. 

By  the  Law  of  1805  (Second  Session,  chap.  2,  pp.  30-31)  the 
permanent  seat  of  justice  of  the  Superior  Court  was  fixed  in  the 
county  of  Orleans,  but  the  court  was  required  once  in  each  year, 
between  June  1st  and  November  1st,  to  "go  circuit"  through  all 
the  other  counties  of  the  territory  and  the  judge  of  the  county 
court  was  required  to  attend  the  Superior  Court  in  its  sessions. 
The  judge  or  judges  going  circuit  were  allowed  $800  for  their 
traveling  expenses. 

By  the  act  of  March  31, 1807,  (chap.  1,  page  2) ,  the  state  was 
divided  for  the  first  time  into  appellate  districts  and  five  of  these 
were  created.  The  Superior  Court  was  directed  to  hold  sessions 
at  certain  fixed  periods  in  Donaldsonville,  Pointe  Coupee,  Rapid- 
es, and  Opelousas  for  the  four  country  districts ;  while  St.  Ber- 
anrd,  Plaquemine,  St.  Charles,  and  St.  John  were  incorporated 


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Centenary  of  The  Supreme  Court  25 

into  the  New  Orleans  district,  and  its  appeals  made  returnable 
at  that  city. 

Under  this  legislation  and  its  own  rules,  it  Vas  common 
practice  in  the  Superior  Court  to  try  appeals  by  jury.  Bayon  v. 
Rivet,  2  Mart.  (0.  S.)  148,  and  Brooks  v.  Weyman,  3  Mart.  (O. 
S.)  9.  Aside  from  this  peculiarity,  the  court  seems  to  have 
found  a  way  to  review  all  the  facts  on  appeal.  The  early  rules 
have  not  been  found,  and  there  is  little  in  the  printed  reports  to 
explain  the  manner  of  bringing  up  the  facts.  Possibly  the  prac- 
tice of  the  time  is  reflected  in  the  language  of  the  new  Supreme 
Court  of  the  state  in  one  of  its  first  decisions  (Longer  v.  Pugean, 
3  Mart.  [0.  S.]  221),  to  the  effect  that  judgments  would  not  be 
reversed  or  affirmed,  but  the  appeal  would  be  dismissed,  unless  it 
be  shown  "that  the  whole  case  is  before  us,  or,  in  cases  brought 
up  on  exceptions  to  the  opinion  of  the  judge,  that  the  requisites  of 
the  law  have  been  complied  with." 

Mean  while,  the  Legislature  was  busy  with  many  features  of 
law  and  practice,  and  by  the  time  the  first  Constitution  of  the 
state  was  framed  most  of  the  familiar  things  in  our  law  and 
practice  had  been  created  or  were  in  process  of  development.  A 
comparison  of  Martin's  two  volumes  of  Territorial  Reports  with 
these  contemporary  statutes  from  1804  to  1812  will  show  that  the 
court  was  equally  impregnated  with  the  new  ideas.  The  most 
important  development  of  the  era  was,  of  course,  the  Digest  of  the 
Civil  Law,  or  first  Civil  Code  of  Louisiana,  which  was  adopted, 
after  much  opposition,  by  the  Legislature  of  the  territory.  Chap- 
ter 29,  pages  120-128,  of  the  Laws  of  1808.  This  work  was  the 
frame  upon  which  we  later  builded  the  Civil  Code  of  1825.  The 
Code  of  1805  confirmed  the  civil  law  as  the  fundamental  prin- 
ciple of  our  jurisprudence,  but  it  required  much  effort  on  the 
part  of  its  partisans  to  maintain  the  supremacy.  The  common 
law  was  not  distinctly  repudiated  until  the  constitutional  con- 
vention of  1812  settled  the  question. 

When  the  state  convention  met  in  1812  to  frame  a  constitu- 
tion, the  Superior  Bench  was  composed  of  Mathews,  Lewis,  and 
Martin.  The  latter  was  just  turned  fifty;  the  others  somewhat, 
below  that  age.  Notwithstanding  the  provision  in  the  Schedule 
saving  all  officers  unf;il  their  successors  were  qualified,,. a  ques- 
tion was  raised  after  the  adoption,  of  the  Constitution,  and  be- 
fore the  creation  of  a  judiciary,  controverting  the  right  of  these 


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federal  appointees  to  continue  to  act  as  judges.  Indeed,  the  people 
of  the  Florida  parishes  declared  the  judges  to  be  usurpers,  and 
threatened  to*prevent  the  session  of  the  court  in  that  district.  The 
judges  decided  the  controversy  in  the  form  of  a  joint  letter  to  the 
senate,  holding  that  under  the  Schedule  they  had  become  part  of 
the  state  government,  and  that  they  had  accordingly  resigned 
their  territorial  commissions  and  were  now  de  facto  judges  of  the 
Superior  Court  of  the  State  of  Liouisiana.  The  reasoning  through 
which  the  judges  reached  this  conclusion  still  commands  our 
respect.  It  is  at  once  the  first  and  one  of  the  best  constitutional 
arguments  in  our  reports.    See  2  Martin  (O.  S.)  pp.  161-170. 

Under  this  ruling,  which  seems  to  haye  convinced  the 
doubters,  the  court  sat  as  the  Superior  Court  of  LiOuisiana  from 
the  spring  of  1812  until  the  organization,  on  March  1, 1813,  of  the 
Supreme  Court  created  by  the  Constitution  of  1812. 

The  Legislature  confirmed  this  view  by  appropriating  $2,500 
to  each  of  the  judges  for  salary  as  state  judges.  See  Acts  of  1812, 
chapter  21,  p.  66. 

The  court's  opinions  in  its  new  capacity  are  printed  in  2  Mar- 
tin's (O.  S.)  pp.  171-356,  and  include  several  important  questions, 
whether  considered  from  the  point  of  view  of  the  nature  of  the 
case  or  of  permanency  as  authority.  Thus,  Desbois'  Case,  2  Mart. 
(0.  S.)  185,  held  that  all  the  inhabitants  of  the  territory  became 
ipso  facto  citizens  of  the  state  of  Louisiana  and  of  the  United 
States  as  a  result  of  the  admission  of  the  state  into  the  Union, 
and  without  the  formality  of  naturalization.  Another,  the  Navi- 
gation Canal  Case,  thrice  argued,  famous  in  its  time  and  still  read 
with  interest,  was  finally  decided  in  this  interregnum.  Mathews 
and  Martin  wrote  opposing  opinions,  each  exhausting  the  ancient 
law  concerning  servitudes  of  drain,  and  neither  convinced  the 
other.  See  Orleans  Navigation  Co.  v.  New  Orleans,  2  Mart.  (O. 
S.)  10;  Id.  2  Mart.  (O.  S.)  214;  Id.  1  Mart.  (O.  S.)  269. 

Still  a  third  case  was  Livingston  v.  Cornell,  2  Mart.  (O.  S.) 
281,  also  of  first  rate  importance,  until  its  conclusions  were  set 
aside  by  legislation.  It  was  here  ruled  that  it  was  against  good 
morals  for  a  lawyer  to  share  contingently  in  the  results  of  litiga- 
tion. 

These  slight  references  to  its  jurisprudence  do  not  by  any 
means  exhaust  the  interregnum  cases,  nor  do  they  touch  at  all 
the  hundreds  of  rulings  in  volumes  1  and  2  of  Martin. 


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Centenary  of  The  Supreme  Court  27 

The  Superior  Court,  as  we  have  noted,  was  one  of  first  in- 
stance in  all  criminal  matters  and  in  certain  civil  matters.  It 
was  also  an  appellate  court  in  all  other  civil  causes,  and,  of  course, 
was  the  only  appellate  court  in  the  territory.  It  will  be  readily  un- 
derstood that  under  such  conditions  the  judges  were  an  important 
element  in  the  reorganization  and  rebuilding  of  the  government. 

III.  The  Supreme  Court  of  Louisiana,  1812-1846. 

The  Supreme  Court  of  Louisiana  was  created  by  the  first 
Constitution,  adopted  January  28,  1812,  and  approved  by  Con- 
gress April  30,  1812.  While  Claiborne  called  the  court  of  1803-4 
by  the  same  name,  he  had  no  authority  for  so  doing.  This  designa- 
tion has  remained  unchanged  through  subsequent  constitutional 
mutation.  It  was  here  made  the  highest  court  of  the  state,  and 
that  still  is  its  distinctive  feature. 

By  article  4  of  the  Constitution  the  court  was  to  be  composed 
of  not  less  than  three  nor  more  than  five  judges.  The  title  jus- 
tice does  not  appear  until  the  Constitution  of  1845.  They  were  to 
be  appointed  by  the  Governor,  to  serve  during  good  behavior.  The 
salary  was  fixed  at  $5,000.  No  professional  qualification  was  re- 
quired, a  suggestive  omission  because  at  that  period  laymen 
occupied  similar  positions  in  other  states,  but  the  Legislature  cor- 
rected this  omission  immediately. 

The  jurisdiction  was  exclusively  appelate,  based  on  a  money 
value  in  excess  of  $300.  No  criminal  jurisdiction  was  conferred 
and  none  was  ever  exercised.  The  question  was  promptly  pre- 
sented and  decided  in  Laverty  v.  Duplessis,  3  Mart.  (O.  S.)  42 
(1813).  Thirty  years  afterwards,  in  April,  1843,  the  Legislature 
(Act  93,  p.  59)  created  a  Court  of  Errors  and  Appeals  in  Crimi- 
nal Matters,  sitting  in  New  Orleans,  made  up  of  three  district 
judges  from  the  county  district,  selected  from  the  body  of  the 
judges.  This  court  served  from  July,  1843,  to  February,  1846. 
Its  decisions  are  reported  in  12  Rob.  (La.)  pp.  513-619.  It  ceased 
with  the  adoption  of  the  Constitution  of  1845.  The  judges  who 
served  this  court  were  Thomas  C.  NichoUs,  George  Rogers  King, 
Isaac  Johnson,  with  William  D.  Boyle  temporarily  in  February, 
1846.  This  tribunal  has  often  been  confused  with  the  Supreme 
Court,  but,  as  we  have  shown,  it  was  an  independent  court,  having 
no  connection  whatever  with  the  former  court. 

The  Constitution  of  1812  empowered  the  Legislature  to  or- 
ganize the  judiciary,  and  no  restriction  was  placed  on  it  regard- 


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28  The  Louisiana  Historical  Quarterly 

ing  trial  by  jury  or  the  course  at  common  law.  It  was,  however, 
prohibited  from  adopting  any  system  of  laws  by  general  reference, 
and  was  also  required  to  define  the  particular  law  to  be  enacted. 
This  was  the  culmination  of  one  of  the  great. issues  of  the  terri- 
torial times,  and  the  phraseology  was  adopted  to  prevent  any 
attempt  to  bring  in  the  common. law  by  reference  or  jurispru- 
dence. The  civil  law  had  obtained  legislative  recognition  in  the 
Digest  or  first  Civil  Code  of  1808,  but  the  question  was  still  acute 
when  the  convention  disposed  of  it. 

The  Constitution  further  required  the  judges  to  refer  in 
every  definitive  judgment  to  the  particular  law  in  virtue  whereof 
such  judgment  was  rendered,  and  further  prescribed  that  they 
should  in  all  cases  "adduce  the  reasons  on  which  the  judgment 
is  founded.'*  Our  ancestors  believed  they  could  in  this  way  keep 
down  the  judicial  imagination,  mindful  of  the  thought,  which 
was  prevalent  then  and  which  is  not  yet  wholly  eradicated,  that 
only  the  Lord  could  point  out  the  law  on  which  some  judgments 
are  based.  Indeed,  it  is  said,  though  I  hope  you  will  not  press  me 
for  the  authority,  that  even  He  is  occasionally  constrained  to  pass 
the  point  on  to  the  ruler  of  the  Subordinate  Kingdom. 

Martin's  scornful  reference  to  this  injunction  (3  Martin, 
351)  bore  fruit  in  after  years.  The  makers  of  the  Constitution 
of  1864,  with  canny  prevision,  required  their  judges  to  refer  to 
the  particular  law  "as  often  as  it  may  be  advisable  so  to  do."  and 
their  contemporaries  were  quick  to  point  out  that  the  court  of 
that  period  took  much  comfort  out  of  that  provision.  In  the  Con- 
stitution of  1868  it  was  changed  to  "practicable,'*  and  in  that 
sense  it  appears  in  all  succeeding  charters.  Even  in  its  modified 
form  it  must  be  a  great  relief  to  the  judicial  conscience! 

While  on  this  subject  it  ought  to  be  added  that  by  the  act  of 
February  17, 1821,  p.  98,  the  Legislature  required  "each  and  every 
of  the"  judges  of  the  Supreme  Court  to  deliver  separate  and  dis- 
tinct opinions  in  each  case  "seriatim,  commencing  with  the  junior 
judge  of  such  court."  This  was  fulfilled  by  the  court  \r^  2l  most 
unexpected  way.  Each  judge  wrote,  "I  concur  in  this  opinion  for 
the  reasons  adduced."  Breedlove  v.  Turner,  9  Mart.  (0.  S.)  380- 
381.    On  February  27,  1822,  the  law  was  repealed.  Acts  1822,  p. 

24.  .  .   -      '    .  ^'.  '    '    ^ 

The  first  Legislature  of  Louisiana  met  on  July,27,  18J2,  but 

it  was  not  until  the  second  session,  which  convened  on  November. 


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Centenary  of  The  Supreme  Court  29 

23,  1812,  that  plans  were  devised  for  a  judiciary.  Claiborne  sur- 
vived his  territorial  unpopularity  and  became  the  first  elected 
Governor  of  the  state.  The  delay  in  organizing  the  court  was 
due  partially  to  opposition  to  his  views.  Finally,  on  February  10, 
1813,  he  affixed  his  signature  to  the  first  Judiciary  Act  of  Loui- 
siana.   Laws  of  1813,  pp.  18-34. 

The  first  section  established  a  Supreme  Court  of  three  judges 
"learned  in  the  law,"  any  two  of  whom  would  form  a  quorum. 
Precedence  ran  by  dates  of  commissions,  and,  these  being  equal, 
then  by  ages  of  the  judges.  Out  of  this  grew  the  title  of  Presid- 
ing Judge,  by  which  Hall,  Mathews,  and  Martin  were  in  due 
course  designated.  Appeals  were  to  be  heard  on  transcripts  (in 
the  Superior  Court  the  original  record  had  been  brought  up), 
and  these  should  contain  "the  proceedings  in  the  case  and  all 
other  documents  on  file  in  the  same,"  and  the  court  was  directed 
to  "hear  the  appeal  on  the  pleadings  and  documents  so  trans- 
mitted." 

Sections  10,  11,  and  13  authorized  the  court  to  re-examine, 
reverse,  or  affirm  any  final  judgment,  and  to  render  such  judg- 
ment as  the  nature  of  the  case  should  require.  It  was  provided, 
however,  that  there  should  be  "no  reversal  for  any  error  of  fact, 
unless  it  be  on  a  special  verdict,  or  on  a  statement  of  the  facts 
agreed  upon  by  the  parties  or  counsel,  or  fixed  by  the  court." 

There  was  a  particular  direction  to  reverse  no  judgment  or 
decree  for  any  defect  or  want  of  form,  but  to  "proceed  and  give 
judgment  according  as  the  rights  of  the  cause  and  matter  in  law 
shall  appear  to  them,  without  regarding  any  imperfection  or 
want  of  form  in  the  process  or  course  of  proceeding  whatsoever." 

Section  17  gave  supervisory  power  in  aid  of  jurisdiction,  and 
section  18  the  right  to  make  "all  needful  rules  for  regulating"  the 
practice  of  the  court  not  inconsistent  with  this  statute  or  the 
general  law. 

A  strict  construction  of  this  statute  led  the  court  at  once  to 
the  conclusion  that  it  could  not  review  the  facts  "unless  the  whole 
case  was  before  them"  (Brooks  v.  Weyman,  3  Mart.  [O.  S.] 
13-14),  and  in  1817  (Acts,  pp.  24-44)  the  Legislature  met  this 
situation  by  providing  that  either  party  could  require  the  clerk 
to  take  down  the  oral  testimony  as  given  by  the  witness,  to  be 
transmitted  to  the  Supreme  Court  and  to  serve  as  a  statement 
of  facts.  Acts  1817,  pp.  24-44.  This  was  speedily  construed 
(1819)  to  mean  that  the  notes  of  evidence  constituted  a  state- 


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30  .         The.  Louisiana  Historical  Quarterly 

ment  of  facts,  without  any  certificate  or  other  formality.  Barn- 
wall  V.  Harman,  6  Mart.  (O.  S.)  722.  This  statute  was  incorpo- 
rated into  the  Code  of  Practice  of  1825  as  article  601,  and  is  the 
base  upon  which  rests  the  right  of  this  court  to  re-examine  all  the 
facts  without  regard  to  technical  forms  in  use  elsewhere,  or  for 
that  matter,  which  might  be  used  under  our  own  code. 

In  the  early  days,  and,  indeed,  within  the  memory  of  many 
men  still  practicing,  all  testimony  was  reduced  to  narrative  form, 
save  where  particular  questions  and  answers  were  required  to  be 
taken  down.  The  old  rule  worked  well  in  its  time,  and  it  is  curi- 
ous that,  after  decades  of  swollen  transcripts,  the  trend  of  legal 
reform  is  toward  our  ancient  practice. 

By  the  Constitution  of  1812  the  state  was  divided  into  the 
Eastern  and  Western  Appelate  Districts.  Appeals  from  the 
former  were  returnable  at  New  Orleans  and  from  the  latter  at 
Opelousas.  The  Legislature  was  empowered  to  change  the  last- 
named  at  intervals  of  five  years.  The  court  was  required  to  sit 
in  New  Orleans  from  November  to  July,  inclusive,  ajid  in  Ope- 
lousas from  August  to  October,  inclusive.  This  was  a  day  of 
limited  transportation  facilities,  and  the  mind  dwells  uneasily  oh 
the  spectacle  of  our  ancestors  traveling  over  the  face  of  Louisi- 
ana to  the  seat  of  justice  in  the  heats  of  June,  July,  August,  and 
September ;  nor  can  we  fail  to  be  impressed  regarding  the  effect 
of  that  uncomfortable  season  on  the  judicial  temperament.  Legend 
preserves  many  tales  of  the  habits  of  the  bar  of  this  saddlebag 
time,  and,  if  half  that  is  told  true,  the  fraternity  made  an  Eliza- 
bethan holiday  of  the  journey,  with  other  consolations  besides.  As 
to  the  judges,  the  record  is  more  silent,  but  the  office  must  have 
had  rare  attractions,  for,  of  three  original  appointees,  one  lived 
out  a  long  life  with  unsoured  disposition  and  died  in  office ;  while 
another  held  on  until  he  was  pried  out  of  his  seat  by  a  new  Con- 
stitution, after  more  than  30  years  of  possession. 

The  act  of  1813  required  the  Supreme  Court  to  hold  its  first 
meeting  in  New  Orleans  on  the  first  Monday  of  March  of  that 
year,  and  on  that  day,  the  first  of  the  month  also,  Dominic  A.  Hall 
and  George  Mathews  met  in  the  building  called  in  old  days  the 
Government  House,  and  used  at  this  time  by  the  new  state  offi- 
cials for  public  purposes.  They  presented  commissions  from  Gov- 
ernor Claiborne  dated  respectively  February  22  and  23,  1813, 
and  ordered  the  same  spread  upon  the  minutes.  Several  candi- 
dates for  admission  to  the  bar  were  examir^ed  and  admitted,  in- 


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Centenary  of  The  Supreme  Court  31 

eluding  some  of  the  best-known  men  of  that  period,  and  the 
court  adjourned  until  the  succeeding  day,  when  more  candidates 
were  admitted. 

On  March  9, 1813,  Pierre  Derbigny  presented  his  commission 
from  Claiborne,  which  was  placed  on  the  minutes,  and  the  court 
had  its  full  complement  of  judges.  The  delay  in  his  commission 
was  due  to  opposition  in  the  Senate,  which  first  rejected  and  later 
confirmed  the  nomination. 

On  March  11,  1813,  Prevost,  ex-judge  of  the  Superior  Court, 
brought  forward  the  first  business.  He  moved  for  an  appeal  to 
this  court  from  a  final  judgment  of  the  Superior  Court  rendered 
in  the  interregnum  previously  discussed.  The  court  took  time  to 
consider,  and  on  March  15,  1813,  decided  that  the  right  of  appeal 
created-  by  the  Constitution  of  1812  applied  only  to  the  judicial 
system  created  or  which  should  be  created  thereunder,  and  that 
the  late  Superior  Court  was  no  part  of  that  system  and  had  no 
concern  with  it.  Remembering,  however,  the  famous  de  facto 
decision  in  which  two  of  the  present  judges  were  concerned  (3 
Mart.  [O.  S.]  2-6),  the  court  hastened  to  add  that  the  Superior 
Court  had  retained  its  original  authority  by  virtue  of  the  Schedule 
of  the  Constitution  of  1812,  which  was  in  effect  a  continuation  of 
its  former  jurisdiction;  that  it  was  an  independent  creation  of  a 
different  sovereign,  which  could  not  have  its  powers  ^dded  to  or 
circumscribed  by  state  legislation;  and  that  its  decisions  were 
final  and  irrevocable.  Thus,  with  one  bold  stroke,  the  court  drew 
a  line  between  itself  and  the  ancient  regime,  cleared  its  slate  of  old 
business,  and  left  the  judges  free  to  make  new  jurisprudence. 

The  men  who  thus  set  in  motion  the  career  of  the  court  which 
is  today  celebrating  its  one  hundred  birthday  were  all  immigrants. 
Hall,  it  has  been  variously  said,  was  an  Englishman,  or  a  South 
Carolinian.  Mathews  was  born  in  Virginia,  but  spent  his  youth 
and  young  manhood  in  Georgia,  and  his  father  was  at  one  time 
Governor  of  that  state.  Derbigny  was  born  in  France.  He 
claimed  noble  extraction,  and  was  indeed  an  emigre  of  the  Revolu- 
tion of  1789.  All  were  men  of  reputation  and  capacity,  and  had 
seen  service  in  Louisiana  and  Mississippi  during  the  preceding  ten 
years.    Derbigny  alone  had  had  no  previous  judicial  training. 

Hall  retired  on  July  3,  1813,  to  take  office  as  the  first  fed- 
eral district  judge  of  Louisiana.  It  is  said  his  principal  motive 
for  thus  promptly  exchanging  one  life  position  for  another  was 
the  babel  of  foreign  tongues  which  immediately  smote  his  judicial 


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32  The  Louisiana  Historical  Quarterly 

ear.  He  had  scarcely  a  working  knowledge  of  French  and  none 
of  Spanish,  and  between  the  civil  law  and  the  French  advocates 
he  judged  his  hope  of  fame  and  his  happiness  of  mind  to  lie  in  a 
court  which  would  not  be  called  upon  incessantly  to  master  and 
adjudicate  these  new  and  foreign  ideas  of  jurisprudence.  His 
late  colleagues  found  it  necessary  some  years  afterwards  (1821) 
to  declare  by  rule  they  would  not  admit  to  practice  any  candidate 
who  did  not  know  the  "legal  language  of  the  country.''  9.  Mart. 
(0.  S.)  642. 

The  vacancy  made  by  his  resignation  became  a  pawn  in  a  new 
political  muddle  stirred  up  between  Claiborne  and  his  Legisla- 
ture. It  is  said  that  five  different  names  were  submitted  to  and 
rejected  by  the  Senate,  and  the  impasse  was  finally  avoided  by  a 
compromise  whereby  on  January  1,  1815,  Francois-Xavier  Mar- 
tin, Attorney  General  of  Louisiana,  assumed  the  judgeship  whose 
duties  he  had  so  recently  laid  down,  and  Etienne  Mazereau,  the 
idol  of  the  Creoles,  became  Attorney  General  in  his  place. 

Meantime,  from  July,  1813,  to  January  1,  1815,  the  sessions 
of  the  court  were  held  by  Mathews  and  Derbigny,  and  in  the  Feb- 
ruary term  of  1815  Martin  began  his  service  on  the  Supreme 
Bench,  destined  to  continue  longer  than  any  other  judge  of  that 
court  down  to  this  time.  In  3  Mart.  (O.  S.)  329,  Martin  says  the 
"din  of  war  prevented  any  business  being  done  during  that 
term" ;  but  at  the  opening  of  the  March  term  he  wrote  a  vigor- 
ous opinion  holding  that  General  Andrew  Jackson's  declaration  of 
martial  law  was  a  usurpation  and  ineffective ;  that  "the  exercise 
of  an  authority  vested  by  law  in  this  court  could  not  be  suspended 
by  any  man."  3  Mart.  (0.  S.)  530-531.  This  opinion  was  ren- 
dered in  a  case  in  which  Martin  had  been  counsel  and  on  the 
merits  he  recused  himself.  3  Mart.  (O.  S.)  570. 

The  court  as  constituted  by  this  appointment,  Mathews,  Der- 
bigny, and  Martin,  deserves  a  passing  personal  notice. 

Mathews  has  been  described  as  short,  rotund,  placid,  even- 
tempered,  and  genial,  with  a  touch  of  humor  or  pleasantry  in  his 
intercourse  with  men  and  on  the  bench.  His  disposition  crops  out 
in  his  opinions,  which,  moreover,  are  fine  specimens  of  taste  and 
learning. 

Derbigny  was  tall,  with  a  slight,  graceful  figure,  somewhat 
high-strung,  nervous,  self-centered,  and  ambitious.  A  certain 
idiosyncratic  style  marks  all  of  his  opinions,  and  it  suffers  in  jux- 
taposition to  Martin's  clear,  crisp  English,  as  may  be  seen  in  his 


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Centenary  of  The  Supreme  Court  33 

concurring  opinion  in  the  Martial  Law  Case,  3  Mart.  (O,  S.) 
530-531.  It  is  clear  to  the  end  of  his  service  that  the  author  is 
constantly  transferring  French  thought  to  English  expression. 

Martin  was  "rather  below  the  medium  height,  with  a  large 
head,  a  Roman  nose,  and  thick  neck,"  stern,  silent,  serious,  dogged, 
and  laborious.  There  is  never  a  gleam  of  humor  or  sentiment  in 
his  productions,  but  he  often  rises  to  the  sublime.  He  was  a  noted 
phrase-maker — doubtless  the  result  of  his  taste  for  the  classics, 
already  noticed.  His  epigrammatic  sentences  have  a  terse  clear 
arrangement  that  recalls  Bacon  and  the  Bible.  His  viewS  of  life 
were  as  fixed  as  the  North  Star.  He  was  devoted  to  labor,  and  he 
never  allowed  himself  to  be  detached  from  an  industry  that 
amounted  to  genius. 

For  several  years  the  court  worked  unbroken,  engaged  on 
some  of  the  greatest  questions  that  any  American  court  up  to  that 
time  had  grappled  with,  laying  foundations  to  which  the  ensuing 
years  merely  added  a  superstructure.  In  1820  Derbigny  was 
selected  with  Livingston  and  Moreau-Lislet  to  prepare  the  Civil 
Code,  which  is  now  called  the  Code  of  1825.  In  the  same  year,  on 
December  15,  1820,  he  resigned  the  judgeship  to  enter  unsuccess- 
fully a  contest  for  the  governorship.  Derbigny  ran  as  the  candi- 
date of  the  Creoles,  while  Robertson  was  supported  by  the  Amer- 
ican element.  In  1828  he  was  more  successful,  but  he  had  served 
as  Governor  only  a  year  when,  in  1829,  he  was  thrown  from  his 
carriage,  in  a  runaway  just  outside  the  village  of  Gretna,  in  Jef- 
ferson parish,  and  sustained  a  fracture  of  the  skull  which  caused 
his  death.  To  succeed  him  on  the  bench  the  Governor  selected 
Alexander  Porter,  of  Opelousas,  who  was  appointed  on  January 
2,  1821.  This  new  judge  was  at  35  a  leader  in  his  profession,  a 
scholar,  and  a  publicist.  He  had  held  a  strong  position  in  the 
convention  which  framed  the  Constitution,  and  he  brought  to  the 
bench  a  freshness  and  vigor,  a  depth  of  scholarship,  and  an  in- 
dustrious application  that  materially  added  to  the  prestige  which 
the  court  enjoyed  at  that  time  among  jurists  and  in  the  courts  of 
the  world.  It  is  difficult  to  select  from  his  varied  store  any  one 
case  to  illustrate  his  genius,  but  the  opinion  in  Saul  v.  His  Credit- 
ors, 5  Mart.  (N.  S.)  569,  16  Am.  Dec.  212,  is  generally  recognized 
as  a  production  equal  to.the  legal  classics  of  any  age.  It  is  true 
the  case  was  argued  by  a  galaxy  of  great  lawyers — Grymes,  Hen- 
nen,  Mazereau,  Rawle,  Morse,  Eustis,  and  Livermore — ^but  the 


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34  The  Louisiana  Historical  Qimrterly 

ability,  under  such  circumstances,  to  distinguish  and  to  strike  out 
and  impress  an  enduring  principle  is  no  mean  gift. 

Porter  left  the  bench  in  1833,  seduced  by  political  aspirations, 
and  he  was  serving  as  one  of  the  Senators  of  Louisiana  in  the 
Congress  of  the  United  States  when  he  died  some  years  later. 

With  the  passing  of  Porter  the  court  may  be  said  to 'have 
closed  its  Imperial  or  Augustan  Age.  The  largest  part  of  its 
great  task  had  been  completed.  It  remained  only  to  keep  the  path 
straight  and  to  profit  by  the  experience  of  the  past  in  applying  the 
problems  of  the  future. 

BuUard,  who  took  Porter's  place,  has  written  the  contem- 
porary view  in  a  footnote  to  6  Robinson,  413.  "It  was,"  he  says, 
"a  period  remarkable  in  our  judicial  annals,  in  the  course  of  which 
the  law  itself  underwent  great  changes,  by  the  amendments  of 
the  Ciyil  Code  and  the  enactment  of  the  Code  of  Practice,  and  the 
final  abrogation  of  the  Spanish  law,  in  1828.  These  changes 
added  much  to  the  labors  of  the  bench ;  and,  while  they  ultimately 
simplified  our  jurisprudence,  produced  perplexing  difficulties  in 
the  comparison  of  the  old  with  the  more  recent  enactments.  The 
Code  of  Practice  especially  was  a  most  perplexing  innovation.  The 
task  imposed  upon  the  court  was  performed  with  discrimination 
and  ability.  It  was  also  during  that  period  that  the  most  im- 
portrant  decisions  were  rendered  on  questions  of  the  conflict  of 
laws,  and  that  branch  of  international  jurisprudence  was  greatly 
illustrated  by  the  labors  of  the  Supreme  Court  of  Louisiana." 

To  succeed  Porter,  the  Governor  on  February  4,  1834,  com- 
missioned Henry  A.  Bullard,  a  native  of  Massachusetts.  The  new 
judge  was  a  Harvard  graduate,  and  at  46  had  seen  the  world  in 
many  aspects.  He  had  filibustered  in  Mexico,  practiced  law  in 
Louisiana,  served  as  a  district  judge  in  Natchitoches,  sat  in  Con- 
gress, cultivated  literature,  written  history;  in  fine,  was  a  ripe 
product  of  the  times.  He  served  until  February,  1839 ;  resigned, 
and  again  returned  to  the  court  in  1840  remaining  this  time  un- 
til the  Constitution  of  1845  legislated  that  bench  out  of  office. 

Mathews  died  in  November,  1836,  and  with  his  death  the 
court  of  1812  entered  upon  its  twilight.  A  series  of  rapid  changes 
took  place.  Martin  grew  blind  and  decrepit  as  he  aged.  When  he 
became  Presiding  Judge  through  Mathews'  death  in  1836,  his 
sight  was  very  bad,  and  ultimately  was  lost  completely;  but  he  re- 
mained on  the  bench,  notwithstanding  this  serious  handicap, 


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Centenary  of  The  Supreme  Court  35 

steadfastly  holding  on  to  a  position  which  physically  he  was  un- 
fitted to  fill. 

He  was  now  surrounded  in  quick  succession  by  new  men, 
who  came  and  went  without  leaving  much  impression  on  their 
own  time,  and  whose  work  of  this  period  has  been  neglected  or 
forgotten,  or  would  be  forgotten,  had  some  of  them  not  made  later 
reputations  which  compels  the  historian  to  return  to  their  earlier 
labors  for  comparison. 

Mathews'  place  was  filled  April  1,  1837,  by  Henry  Carleton, 
who  is  still  remembered  as  coadjutor  with  Moreau-Lislet  in  the 
translation  of  the  Partidas,  which  was  accepted  in  1820  by  the 
Legislature  on  the  recommendation  of  a  committee  appointed  for 
the  purpose  of  examining  the  translation.  This  committee  was 
Derbigny,  Mazereau,  and  Livingston,  and  the  Legislature  ordered 
the  translation  to  be  circulated  as  a  substantial  contribution  to- 
ward an  understanding  of  the  laws  of  Spain. 

Carleton  resigned  in  February,  1839,  and  BuUard  resigned  at 
the  same  time,  as  already  noted,  leaving  Martin  alone  on  the 
bench. 

At  this  period  the  court  had  accumulated  a  large  docket, 
due  principally  to  the  litigation  resulting  from  the  current  panic 
and  financial  depression.  The  illness  of  Mathews  and  Martin  had 
some  part  in  the  congestion,  but  the  methods  of  the  court  were 
also  criticized.  The  judges  heard  arguments  on  three  days  in 
each  week,  sitting  five  hours  per  day.  No  check  was  placed  on 
counsel,  and  the  court  took  the  same  privilege.  It  was  called  a 
"talking  court."  There  was,  it  is  said,  a  continuous  argument  in 
which  the  judges  often  held  the  floor  to  the  exclusion  of  counsel. 
There  were  times  when  not  more  than  one  case  was  heard  in  the 
entire  three  days.  A  critic  of  the  period  (Gustavus  Schmidt,  1  La. 
Law  Journal,  157)  estimated  that  the  docket  then  held  400  cases, 
and  that  the  last  one  filed  would  probably  be  reached  at  the  end 
of  14  years. 

To  meet  the  public  reproach,  two  of  the  most  active  leaders  of 
the  bar  were  selected  to  fill  the  vacancies,  and  on  March  4,  1839, 
the  Governor  appointed  Pierre  Adolph  Rost  and  George  Eustis. 
As  their  commissions  bore  the  same  date,  the  age  rule  of  the  Con- 
stitution was  invoked  to  determine  precedence.  Thereupon,  says 
the  reporter  (13  La.  87),  "Judge  Rost,  being  the  senior,  took  his 
seat  on  the  right  and  Judge  Eustis  on  the  left  of  the  Presiding 
Judge." 


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36  The  Louisiana  Historical  Qitarterly 

These  new  judges  belonged  to  the  modern  regime.  Eustis 
was  from  Massachusetts,  of  distinguished  family,  well  educated, 
and  had  served  as  attache  in  one  of  our  embassies  in  Europe.  He 
enjoyed  a  large  law  practice  here,  and  his  acceptance  was  an  un- 
doubted financial  sacrifice.  Rost  was  of  French  birth,  and  had 
served  with  Napoleon  near  the  close  of  the  latter's  reign.  He  had 
resided  in  Louisiana  for  many  years.  He  was  in  all  respects,  so- 
cially and  otherwise,  in  the  Eustis  category,  and  had,  besides,  cul- 
tivated the  habit  of  an  annual  foreign  vacation,  and  the  families 
of  both  judges  were  absent  in  Europe  at  the  time  of  their  ap- 
pointment. It  did  not  take  either  judge  long  to  reconsider  his 
change  in  life.  Contemporary  gossip  had  it  that  aside  from  the 
lost  professional  emoluments  and  the  freedom  of  life,  which  were 
sadly  missed,  the  new  judges  found  themselves  hampered  by  the 
Presiding  Judge  in  the  effort  to  clear  the  docket.  These  personal 
peculiarities  of  the  Presiding  Judge  apparently  could  not  be  over- 
come, and  they  added  the  last  drop  which  overflowed  the  pail  of 
regret.    In  May,  1839,  Rost  resigned,  and  Eustis  followed  in  June. 

The  Governor  found  it  not  easy  to  replace  these  recalcitrants. 
Finally  George  Strawbridge  accepted,  and  so  did  Alonzo  Morphy, 
who  were  appointed  in  August,  1839.  Strawbridge  served  one 
term  in  the  Western  District,  and  took  the  way  of  Rost  and 
Eustis ;  but  this  was  expected,  for  he  declared  when  accepting  that 
he  intended  to  sit  only  through  that  term  and  for  the  purpose  of 
assisting  to  clear  the  congested  docket  of  his  district.  Morphy 
remained  until  the  court  of  1845  came  in.  By  birth,  training,  and 
service  Morphy  was  well  fitted  for  the  post.  He  was  a  South 
Carolinian,  and  had  been  a  student  in  Livingston's  office.  He  had 
served  in  the  Legislature  and  as  Attorney  General.  His  opinions, 
however,  are  not  light,  or  thought  stirring  reading,  probably  be- 
cause the  labor  of  expressing  the  views  of  the  court  was  almost 
wholly  thrown  upon  him.  He  is  the  author  of  more  than  three- 
fourths  of  the  opinions  reported  during  his  incumbency. 

Eustis  was  tendered  the  Strawbridge  vacancy,  but  declined, 
and  the  Legislature  in  1839  concluded  to  end  the  trouble  by  exer- 
cising the  privilege  granted  by  the  Constitution  to  enlarge  the 
court  to  five  members.  Bullard  now  accepted  a  reappointment, 
and  Edward  Simon  and  Rice  Garland  were  added  under  the  act 
just  quoted.  See  14  La.  preface.  The  latter  ce?  ed  to  act  after 
the  September  term,  1845. 


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Centenary  of  The  Supreme  Court  37 

The  decisions  of  the  court  of  1812  appearing  in  the  eighteen 
volumes,  3  to  12,  Martin,  Old  Series,  and  1  to  8  Martin,  New 
Series,  were  reported  by  Martin  himself  and  published  at  his  own 
expense.  Martin's  decisions  extend,  however,  through  the  entire 
series  of  fifty-one  volumes  of  Reports,  covering  the  period  1809- 
1846. 

In  the  March  term  of  1830  Branch  W.  Miller  became  reporter 
to  the  court,  under  legislative  authority,  and  his  work  appeared 
as  the  Louisiana  Reports.  He  was  succeeded  in  6  Louisiana  by 
Thomas  Curry,  who  continued  the  publication  under  the  same 
name  until  March,  1842,  making  nineteen  volumes  of  that  series. 
He  wrote  a  valedictory  which  he  published  as  a  preface  to  his 
last  volume  (19  La.),  and  it  may  still  be  read  with  interest. 

Under  contract  with  the  state,  Merritt  M.  Robinson  continued 
the  Reports,  but  gave  them  his  own  name.  He  began  his  official 
career  in  1842  by  a  suggestion  to  the  court  to  be  relieved  of  the  ex- 
pense of  publishing  certain  of  its  decisions,  and  he  clearly  inti- 
mated that  many  of  these  were  of  no  general  or  public  interest, 
and  most  of  them  were,  in  any  event,  too  long,  for  all  of  which  he 
was  promptly  and  emphatically  snubbed  by  the  court.  He  has 
embalmed  the  incident  in  a  preface  to  1  Robinson,  and  had  his 
revenge  in  twelve  portly  volumes,  covering  not  quite  four  years 
of  the  court;  but  it  is  an  open  question  who  had  the  best  of  the 
argument,  for  the  point  is  still  under  discussion  all  over  the  Anglo- 
Saxon  world,  and  we  have  not  yet  heard  the  last  word. 

On  Wednesday,  March  18, 1846,  the  court  of  1812  met  for  the 
last  time,  with  only  Morphy  and  Simon  present,  and  they  ad- 
journed to  Thursday,  March  19th.  On  that  day  the  court,  organiz- 
ed under  the  Constitution  of  1845,  began  its  sessions. 

The  old  regime  had  lasted  thirty-three  years,  but  no  one  re- 
gretted its  end.  Its  greatest  mind  was  still  in  service,  but  his 
lamp  was  flickering,  and  he  too  passed  away  at  the  end  of  the 
same  year. 

We  have  noted  Martin's  first  opinion.  It  is  well  to  refer  to 
the  last  one.  It  is  brief  and  very  much  after  the  old  Martin 
manner.  In  Bridge  v.  Oakley,  12  Rob.  638,  the  Presiding  Judge 
ruled  that  an  exception  of  no  cause  of  action  would  not  lie  in  an 
action  for  damages  by  a  voter  against  an  inspector  of  elections  for 
maliciously  preventing  the  voter  from  voting  at  an  election ;  that 
the  malicious  deprivation  of  the  ballot  was  an  injury  compensable 
at  law. 


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38  The  Louisiana  Historical  Quarterly 

IV.  1846-1853. 

For  years  before  the  close  of  the  period  just  described  poli- 
tical parties  in  Louisiana  had  been  seriously  divided  on  the  ques- 
tion of  suffrage,  popular  control,  and  rotation  in  office.  The  old 
system  was  topheavy,  and  many  abuses  were  laid  to  its  door,  par- 
ticularly in  so  far  as  the  judiciary  w&s  concerned.  Finally  a  con- 
\ention  was  called  to  frame  a  new  Con^lif:a*-ion,  bat  the  factions 
were  so  evenly  divided  the  result  was  a  compromise  which  pleased 
few,  and  indeed  strengthened  the  objectors  for  a  new  struggle 
which,  it  was  recognized,  would  speedily  ensue. 

The  Constitution  of  1845  framed  by  this  body  provided  for  a 
Supreme  Court  to  be  composed  of  a  Chief  Justice  and  three  As- 
sociates, to  be  appointed  by  the  Governor  for  a  term  of  eight 
years,  the  first  judges  to  go  out  at  intervals  of  two  years,  the 
Chief  Ju3tice  last,  and  their  successors  to  be  appointed  for  the  full 
term.  The  salary  was  $6,000  for  the  Chief  Justice  and  $5,500  for 
the  Associates.  Being  a  court  of  four,  it  was  provided  that  the 
judgment  below  should  be  affirmed  when  the  court  was  divided 
in  opinion. 

Sessions  were  fixed  in  New  Orleans  from  the  first  Monday 
of  November  to  the  end  of  June,  and  elsewhere  as  should  be  de- 
termined by  the  Legislature.  Under  statutory  provisions,  the 
sessions  after  1846  were  held  in  Opelousas  in  August,  Alexandria 
in  September,  and  Monroe  in  October,  giving  the  judges  but  one 
month  of  holiday. 

The  appellate  civil  jurisdiction  over  $300  in  amount,  and 
other  provisions  of  the  previous  Constitution  were  re-enacted. 
Appellate  jurisdiction  in  criminal  cases  and  on  the  law  only  was 
conferred  for  the  first  time,  limited  to  cases  where  the  punish- 
ment of  death  or  hard  labor  was  inflicted;  also  in  all  cases  in- 
volving the  constitutionality  or  legality  of  any  tax,  toll,  or  impost, 
and  over  fines,  forfeitures,  and  penalties  imposed  by  municipal 
corporations. 

This  court  organized  on  Thursday,  March  19,  1846,  in  the 
room  which  had  been  occupied  for.  some  time  by  its  predecessor. 
Years  afterward  the  same  room  was  occupied  by  the  Third  Dis- 
trict Court  for  the  Parish  of  Orleans,  in  which  Justice  Monroe 
held  his  first  judgeship. 

No  ceremony  marked  the  advent  of  the  new  judges,  who  con- 
formed to  the  simple  practice  of  the  first  court.   Their  commis- 


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Centenary  of  The  Supreme  Court  39 

sions  were  signed  by  Isaac  Johnson,  Governor,  and  countersigned 
by  Charles  Gayarre,  Secretary  of  State.  These  were  spread  on 
the  minutes,  and  the  day's  session  was  concluded. 

These  judges  were  George  Eustis,  Chief  Justice;  Pierre 
Adolphe  Rost,  George  Rogers  King,  and  Thomas  Slidell,  Asso- 
ciates. The  Chief  Justice  and  the  Senior  Associate  Rost  had 
served,  as  heretofore  noted,  for  a  brief  period  under  Martin  in 
1839,  but  Eustis  here  attained  the  distinction  of  First  Chief 
Justice  of  Louisiana. 

King  retired  in  December,  1849,  or,  at  least,  he  did  not 
serve  after  that  date.  He  was  succeeded  by  Isaac  T.  Preston,  ap- 
pointed by  Governor  Joseph  Walker,  who  was  seated  March  4, 
1850.  Judge  Preston  perished  in  a  steamboat  fire  on  Lake 
Pontchartrain  on  July  5,  1852,  and  William  Dunbar  was  appoint- 
ed to  fill  the  unexpired  term.  He  sat  for  the  first  time  at  Alexan- 
dria in  the  September  term  of  1852.  The  latter  is  chiefly  remem- 
bered as  the  subject  of  an  excoriating  pamphlet  by  Charles  Gay- 
arre in  a  later  campaign  in  which  they  were  opposing  candidates 
for  Congress,  but  which  did  not  elect  its  author. 

King  had  served  as  District  Judge  on  the  Court  of  Criminal 
Errors  and  Appeals,  and  was  considered  an  excellent  criminal 
lawyer.  State  v.  Brette,  6  La.  Ann.  661.  He  retired  from  the 
Supreme  Court  in  1849  because  he  felt  unequal  to  the  labor.  He 
was  fragile  and  ill,  but  he  survived  all  of  his  Associates,  dying 
only  in  1871. 

Preston  had  been  an  active  partisan  for  years  in  Jefferson 
parish,  and  was  a  member  of  the  Convention  of  1845. 

Eustis  has  heretofore  received  a  passing  notice  regarding  his 
service  in  1839,  but  his  position  in  our  legal  history  justifies  the 
insertion  here  of  a  sketch  (which  is  also  intrinsically  worthy  of 
repetition)  from  the  pen  of  one  who  occupied  the  same  seat  only  a 
few  years  later.  Eustis  died  in  1859,  and  Chief  Justice  Merrick, 
addressing  the  bar  of  the  court,  said : 

"The  attainments  of  Judge  Eustis  as  a  jurist  were  what 
might  have  been  expected  from  his  fine  mind,  great  industry,  and 
studious  habits. 

"Through  the  many  years  of  his  professional  life  he  was  con- 
stantly adding  to  his  great  stores  of  learning,  and  sounding  the 
fountains  and  sources  of  our  law.  To  him  the  profession  was  not 
merely  an  art,  valuable  because  it  produced  gold  and  silver;  it 
was  rather  a  field  of  ethical  philosophy,  which  rewarded  each 


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40  The  Louisiana  Historical  Quarterly 

search  with  new  discoveries,  and  furnished  those  pleasures  to  a 
cultivated  mind  which  science  daily  bestows  upon  her  votaries, 

"In  his  intercourse  with  this  court  as  an  advocate  his  man- 
ner was  peculiar.  He  seemed  (in  those  important  and  difficult 
cases  which  were  principally  confided  to  him),  to  discard  all  de- 
clamation and  elaborate  deductions  from  particular  texts,  and 
merely  suggesting  the  sources  of  the  law  to  be  examined,  to  give 
himself  up  to  the  search  of  the  legal  principle  which  was  to  con- 
trol the  case,  as  one  whose  main  object  was  to  aid  the  court  in  its 
pursuit  of  the  truth,  and  who  had  no  further  interest  in  the  result 
than  a  desire  that  the  right  conclusion  should  be  attained." 

The  court  held  its  last — a  purely  formal — session  in  New  Or- 
leans on  Monday,  May  2,  1853,  with  Rost,  Slidell,  and  Dunbar 
present,  and  adjourned  sine  die. 

The  court  of  1846  had  come  into  office  under  a  cry  for  reform 
in  the  long  opinions  and  costly  delays  of  the  late  system.  In 
response,  rules  and  methods  were  adopted  by  the  court  in  which 
everything  was  subordinated  to  this  end.  One  rule  deserves  re- 
membrance. When  rehearings  were  granted  the  case  was  re- 
submitted at  once;  the  party  against  whom  it  was  allowed  was 
required  to  file  within  three  days  thereafter  a  printed  argument 
on  the  points  on  which  the  rehearing  was  given,  and  the  other 
party  to  reply  thereto  within  the  three  succeeding  days. 

On  the  question  of  lengthy  opinions  the  court  almost  sacri- 
ficed clearness  to  brevity,  for,  while  many  important  and  far- 
reaching  opinions  were  rendered,  the  hallmark  is  upon  all  of  them. 

It  was  a  court  of  strong,  bright,  active  men,  and  the  bulk  of 
its  work  was  enormous.  It  caught  up  with  a  congested  dock- 
et— it  would  seem  to  have  been  impossible  to  satisfy  a  cry  for 
reform  more  completely  than  in  this  instance — but  the  spirit  of 
the  young  democracy  was  not  to  be  appeased,  and  before  the  com- 
mission of  the  Chief  Justice  expired  a  new  Constitution  swept  an- 
other bench  into  power. 

Merrick  said  of  this  court,  on  the  occasion  above  mentioned : 

"On  the  change  under  the  Constitution  in  1846 — in  the  for- 
mation of  which  he  aided — Judge  Eustis  accepted  the  office  of 
Chief  Justice  of  this  court,  which  he  held  until  the  Constitution  of 
1852  was  carried  into  effect  in  1853.  The  decisions  of  this  period 
are  contained  in  the  first  eight  volumes  of  the  Annual  Reports. 
These  volumes  evince  the  greatest  capacity  for  the  transaction  of 
business,  and  the  most  untiring  industry  on  the  part  of  the  mem- 


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bers  of  that  court.  To  judge  of  these  labors  we  must  compare 
them  with  the  earlier  years  of  our  jurisprudence. 

"At  the  time  the  Supreme  Court  was  organized,  and  many- 
years  afterwards,  from  forty  to  ninety  cases  were  all  it  was  called 
upon  to  decide  during  its  session  in  this  city.  At  the  period  to 
which  I  refer,  its  business  had  increased  to  between  four  and  five 
hundred  cases.  What  learning  was,  therefore,  required  of  a  court 
composed  of  only  four  judges  to  meet  the  exigencies  of  the  public 
business,  may  be  imagined  when  it  is  considered  the  judges  were 
without  any  sufficient  leisure  for  the  investigation  of  authorities, 
except  those  cited,  and  were  compelled  to  rely  in  a  great  measure 
on  their  previous  reading,  or  see  the  business  of  the  court  in- 
crease until  it  should  overwhelm  them  with  its  hopeless  accumu- 
lation. It  is  a  sufficient  praise  to  Judge  Eustis  to  say  that  he, 
with  the  assistance  of  his  able  colleagues,  was  equal  to  the  occa- 
sion."   13  A.  viii. 

The  reported  opinions  of  the  court  of  1845-1853  were  pub- 
lished by  M.  M.  Robinson,  reporter  of  the  previous  court.  A  new 
series  was  begun,  called  the  Lrouisiana  Annual  Reports,  a  title 
which  remained  unchanged  for  fifty-two  years.  So  far  as  now 
known,  the  reporter  had  discretion  regarding  the  printing  of  the 
decisions.  In  any  event,  there  is  published  in  1st  Annual  the  first 
known  list  of  unreported  cases.  Robinson  soon  gave  way  to  W. 
W.  King,  and  he,  in  turn,  was  succeeded  by  W.  M.  Randolph  as  re- 
porter, before  the  labors  of  this  court  ceased. 

Randolph  was  a  lawyer  of  the  younger  set  who  had  before 
him  a  long  and  honorable  life  and  who  reached  high  position 
at  the  bar.  He  was  selected  by  the  court  for  the  reason  that  the 
court  had  been  chosen,  to  clear  up  a  congested  situation.  The 
preceding  reporter  was  fifteen  months  in  arrears  on  his  printed 
work,  and  in  June,  1853,  was  publishing  the  opinions  rendered  in 
March  of  the  preceding  year.  In  1854  the  new  reporter  deliver- 
ed volume  7,  covering  the  year  1852,  and  promised  the  Reports  of 

1853  within  thirty  days  and  the  decisions  of  the  first  quarter  of 

1854  by  August  of  that  year.  With  this  prelude  the  reporter 
opens  a  preface  to  volume  7,  and  adds : 

"The  reporter  hopes  that  the  large  amount  of  work  will  be 
a  sufficient  apology  for  the  apparent  delay  in  publication.  Few 
persons  not  familiar  with  the  drudgery  of  proof-reading  can 
form  a  distinct  idea  of  its  annoyances.  There  can  be  no  doubt  that 


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42  The  Louisiana  Historical  Quarterly 

whatever  gifts  'come  by  nature,'  correcting  proof  is  not  one  of 
the  number." 

We  learn  from  this  preface  that  the  labor  of  making  the 
syllabus  fell  on  the  reporter,  and  in  using  the  early  Annuals  it  is 
well  to  remember  this.   He  sajrs: 

"In  all  cases,  whenever  practicable,  in  making  the  abstracts 
of  points  decided,  the  language  of  the  court  has  been  adopted.  In 
a  very  large  number  of  cases  the  facts  are  stated  to  which  the  law 
has  been  applied,  no  attempt  being  made  to  generalize  a  principle 
from  the  decision,  when  the  court  has  not  announced  such  a 
generalization.  This  had  greatly  increased  the  labor ;  but  it  has, 
he  trusts,  secured  accuracy." 

V.  1853-1864. 

The  Constitution  of  1852  was  the  product  of  the  new  demo- 
cracy, and  it  reflected  the  spirit  of  the  times. 

This  instrument  created  a  Supreme  Court  of  one  Chief 
Justice  and  four  Associate  Justices,  elected  by  the  people  at  times 
different  from  other  elections,  for  a  term  of  ten  years ;  the  first 
appointees  to  go  out  at  intervals  of  two  years,  and  the  Chief 
Justice  going  last  and  serving  the  first  full  term.  The  salary 
remained  at  $6,000  for  the  Chief  Justice  and  $5,500  for  the 
Associates.  The  state  was  divided  into  four  Supreme  Court  Dis- 
tricts, with  the  Chief  Justice  elected  from  the  state  at  large.  This 
was  the  first  time  this  physical  division  had  been  made ;  thereto- 
fore, however,  there  was  an  unwritten  rule  to  the  same  effect, 
which  had  not  always  been  observed.  Vacancies  were  to  be  filled 
by  the  Executive,  unless  more  than  one  year  of  the  term  remained, 
in  which  case  the  office  was  sent  to  an  election. 

The  jurisdiction  remained  practically  as  in  the  Constitution 
of  1845,  save  that  the  Legislature  was  given  the  power  to  restrict 
it  "in  civil  cases  to  questions  of  law  only,"  a  power  which  was 
never  exercised. 

Wherever,  by  reason  of  recusation,  a  majority  did  not  con- 
cur in  the  opinion,  the  court  was  authorized  to  call  in  any  judge 
of  an  inferior  court  to  sit  in  the  place  of  the  recused  justice.  This 
was  also  a  new  provision  which  had  not  appeared  in  the  previous 
constitutions. 

The  place  and  time  of  the  sessions  at  New  Orleans  remained 
as  before — ^the  first  Monday  of  November  to  the  end  of  June,  and 
elsewhere  as  should  be  directed  by  the  Legislature. 


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Centenary  of  The  Supreme  Court  43 

On  Monday,  May  4,  1853,  the  Supreme  Court  elected  by  the 
people  under  the  Constitution  of  1852  organized  in  New  Orleans 
with  Thomas  Slidell,  Chief  Justice,  and  Cornelius  Voorhies,  A.  M. 
Buchanan,  and  A.  N.  Ogden,  Associate  Justices.  James  G.  Camp- 
bell, the  fifth  justice,  joined  on  the  16th  of  the  same  month. 

The  rule  or  ceremony  of  installation  did  not  vary  from  the 
precedents  already  quoted.  Their  commissions  were  signed  by 
P.  0.  Hebert,  Governor. 

Slidell,  as  we  have  seen,  came  over  from  the  preceding  court, 
advancing,  however,  to  the  principal  seat  and  becoming  the  sec- 
ond Chief  Justice  of  the  state.  The  court  was  strong  as  a  whole 
.and  compared  favorably  with  its  immediate  predecessor.  Its  deci- 
sions are  as  a  rule  brief,  and  it  is  evident,  without  resorting  to 
tradition,  that  lawyers  and  court  worked  earnestly  and  rapidly. 

The  courts  of  other  years  had  apparently  placed  no  time 
limit  on  arguments,  and  your  honors  and  the  brethren  of  today 
may  feel  some  interest  in  the  new  rule  of  1853  on  that  subject.  It 
raised  a  chorus  of  dissent.  The  legal  horizon  grew  black  with 
prophecy  of  evil  to  result  therefrom,  and  yet  that  rule  was  mere 
childs-play  compared  with  the  one  under  which  we  work. 

"In  consequence,"  says  the  court,  "of  the  great  number  of 
cases  upon  the  docket,  the  following  rule  is  adopted,  to  wit:  It 
is  ordered  that  not  more  than  one  hour  will  be  allowed  for  an 
opening  argument,  one  hour  to  each  counsel  for  the  defense  (not 
exceeding  two),  and  one  hour  for  the  closing  arguments,  except 
where  in  special  cases  the  court  on  previous  application  may 
otherwise  order." 

It  is  said  that  a  good,  uninterrupted  four  hours'  argument 
will  enable  any  Supreme  Court  to  cut  down  its  opinions  one-half, 
if,  indeed,  it  does  not  leave  the  court  without  the  ability  to  say 
anything  whatever.  Your  honors  may  not  have  heard  this  before, 
and  the  information  is  respectfully  submitted. 

The  court  of  1853  lived  only  nine  years,  excluding  the  War 
period,  but  it  created  a  record  in  Louisiana  for  rotation  in  office. 

Campbell  resigned  in  June,  1854,  and  H.  M.  Spofford  was 
elected  to  succeed  him,  taking  his  seat  on  November  6,  1854. 

Slidell  was  assaulted  by  a  ruffian  at  the  polls  in  June,  1855, 
and  his  injuries  were  such  that  he  was  compelled  to  retire.  He 
dragged  out  a  life  of  mental  disability  until  his  death,  in  1861. 
He  was  a  Democrat  of  pronounced  type,  one  of  the  wheel  horses  of 


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44  The  Louisiana  Historical  Quarterly 

his  party,  and  a  leader  of  the  movement  for  an  elective  judiciary. 
It  seemed  the  irony  of  politics  that  his  splendid  career  should  have 
been  summarily  closed  by  an  irresponsible  wretch,  whose  right  to 
be  at  that  spot  had  perhaps  been  guaranteed  to  him  through  the 
efforts  of  his  victim. 

Slidell  was  succeeded  by  Edwin  Thomas  Merrick,  after  a 
fierce  campaign,  which  it  is  said  has  never  been  paralleled  in  the 
history  of  the  state  until  very  recent  times.  The  third  Chiei 
Justice  had  been  a  district  judge  in  the  Feliciana  district,  and  he 
came  to  his  seat  with  an  established  reputation  as  a  jurist.  He 
entered  on  his  duties  at  Monroe  on  August  1, 1855. 

In  June,  1855,  Ogden  resigned,  and  his  unexpired  term  was 
filled  by  the  election  of  Lea,  who  sat  for  the  first  time  on  Mon- 
day, July  23,  1855. 

Lea's  term  expired  in  April,  1857,  and  his  place  was  taken 
by  J.  L.  Cole  on  May  4,  1857. 

In  September,  1858,  Spofford  resigned,  and  Thomas  T.  Land 
was  elected  and  began  to  serve  on  November  1,  1858. 

Cornelius  Voorhies  retired  in  April,  1859,  and  was  succeed- 
ed by  Albert  Voorhies,  his  son,  on  May  3,  1859. 

In  January,  1860,  J.  L,  Cole  withdrew,  and  Albert  Duffel 
was  elected  in  his  place,  and  took  the  bench  on  March  12,  1860. 

On  Monday,  February  24,  1862,  the  Supreme  Court  met  in 
New  Orleans,  with  Merrick,  Buchanan,  Voorhies,  and  Duffel 
present,  and  Land  absent.  Some  minor  business  was  passed  on, 
and  an  order  was  entered  reciting  that  at  a  meeting  of  the  Judges 
of  the  Supreme  Court  and  the  district  judges  of  Orleans  parish,  it 
had  been  agreed  that  all  courts  should  adjourn  to  facilitate  the 
mobilization  of  the  militia,  which  had  been  ordered  by  the  Legisla- 
ture* Accordingly  the  court  adjourned  to  Monday,  May  5,  1862, 
at  11  o'clock. 

On  that  day,  all  the  judges  being  absent,  the  clerk  ad- 
journed the  court  to  Tuesday,  May  6,  1862,  and  the  same  condi- 
tions still  existing,  he  on  that  date  adjourned  it  sine  die. 

In  the  gathering  of  February  24th  Buchanan  was  the  last 
representative  of  the  group  which  organized  the  court  nine  years 
before.  In  that  short  period  twelve  judges  had  seen  service  on  the 
bench,  but  notwithstanding  this  constant  shifting  of  minds,  the 
body  of  its  jurisprudence  ranks  high.  We  might,  indeed,  para- 
phrase here  Merrick's  eulogy  on  the  preceding  court,  adding  to  it 


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Centenary  of  The  Supreme  Court  45 

Miat  Spofford  had  all  the  ability  of  Eustis  and  was  more  than 
his  equal  in  industry,  and  that  the  Chief  Justice  himself  took 
pride  in  keeping  ahead  of  his  Associates  in  the  volume  of  his  pro- 
duct, and  found  time  besides  to  write  concurring  and  dissenting 
opinions,  which  established  his  reputation  as  an  independent 
thinker.  Indeed,  these  volumes  and  others  like  them  make  i-s  re- 
gret that  the  Constitution  of  Louisiana  now  prohibits  the  publi- 
cation of  concurring  and  dissenting  opinions ;  for,  with  this  limi- 
tation on  the  judicial  mind,  there  seems  to  have  fallen  on  the 
court  a  habit  of  concurrence  which  has,  it  is  thought,  helped  to 
create  the  impression  of  a  one-man  court,  concerning  which  so 
much  has  been  said  in  recent  days. 

Aside  from  the  learning  and  industry  of  the  judges,  the  court 
had  a  peculiar  advantage  over  its  predecessors  in  that  nearly 
always  there  were  at  least  three  men  sitting  together  who  had 
seen  long  service  on  the  district  bench,  and  who  had  there  attract- 
ed the  deserved  appreciation  of  the  bar.  The  judges  were  not  only 
zealous  workers,  but  there  was  between  them  a  jealousy  and  ri- 
valry in  work  which  urged  each  to  his  topmost  speed.  There  is  a 
curious  contemporary  illustration  of  this  in  a  copy  of  Eleventh 
Annual  in  my  possession.  It  contains  the  autograph  of  Justice  A. 
M.  Buchanan,  and  was  evidently  used  by  him  while  on  the  bench. 
On  the  flyleaf  is  this  entry  in  his  handwriting : 

"This  volume  contains  409  decisions,  of  which  pronounced  by 


M. 

104 

V. 

55 

B. 

76 

S. 

104 

L. 

70 

409 

"Opelousas  cases  omitted  in  this  volume  altogether,  although 
43  cases  were  decided  there,  of  which 


M. 

15 

B. 

14 

L. 

14 

43 
'Justices  Voorhies  and  Spofford  absent  from  Opelousas.' 


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46  The  Louisiana  Historical  Quarterly 

Up  to  the  closing  hour  in  New  Orleans  the  court  seems  from 
its  minutes  to  have  been  undisturbed  by  the  clamor  and  distur- 
bance of  the  great  war  which  was  raging  without  its  portals.  The 
last  reported  cases,  decided  in  February,  1862,  show  no  sign  of 
haste  or  tremor.  Indeed,  it  was  only  when  the  city  was  literally  in 
the  embrace  of  the  foeman,  and  the  local  authority  was  toppling 
to  its  dissolution,  that  the  session  was  brought  to  an  end. 

The  opinions  of  the  court  of  1852  begin  at  page  277  of  the  8 
Annual,  reported  by  W,  M.  Randolph,  who  was  succeeded  in  12 
An.  by  A.  N.  Ogden,  who  served  until  1862,  but  the  opinions  of 
1861-62  were  compiled  after  the  War  closed,  and  were  published 
by  S,  F.  Glenn,  with  the  assistance  of  the  late  reporter.  It  ought 
also  to  be  added  that  by  an  act  passed  in  1855  the  reporter  was 
directed  to  report  aH  cases  save  those  involving  mere  questions  of 
fact,  or  in  which  damages  were  assessed  for  frivolous  appeal. 

The  city  of  New  Orleans  was  taken  by  the  Federal  Army  in 
April,  1862.  Baton  Rouge,  the  capital,  fell  shortly  thereafter,  and 
the  seat  of  the  state  government  was  removed  to  Shreveport,  and 
the  Supreme  Court  was  by  legislative  act  required  to  hold  sessions 
there  or  elsewhere  during  the  War.  Act  23  of  1863.  Merrick  and 
Land  remained  on  duty  at  Shreveport,  but  were  not  joined  by 
Buchanan,  Duffel,  and  Voorhies.  Buchanan  seems  to  have  re- 
mained in  New  Orleans,  and  to  have  drawn  his  salary  from  the 
Auditor  of  the  Hahn  Government.  See  Report,  Journal  of  Con- 
vention of  1864,  p.  134. 

Thomas  Courtland  Manning  was  appointed  by  Governor 
Moore  to  fill  Buchanan's  place,  and  served  until  the  close  of  the 
War. 

Duffel  died,  and  on  February  10,  1864,  the  Confederate 
Legislature  authorized  the  Governor  to  appoint  a  successor  to 
serve  until  an  election  could  be  held  in  Duffel's  (Second)  Judi- 
cial District.  P.  E.  Bonford  was  appointed  under  this  act.  See 
Merrick's  Address  on  Land,  45  An.  vii. 

There  is  no  printed  record  of  any  judicial  work  performed, 
but  in  the  same  address  it  is  said  the  court  heard  and  decided 
several  important  cases  of  public  interest,  besides  acting  in  an 
advisory  capacity  to  the  Governor  and  the  Legislature. 

During  the  first  four  months  of  federal  military  occupation, 
that  is,  from  April  to  August,  1862,  none  of  the  established  courts 
had  been  opened  in  New  Orleans.    The  army  created  a  provost 


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Centenary  of  The  Supreme  Court  47 

court  presided  over  by  Major  Joseph  M.  Bell  of  Butler's  staff.  All 
the  criminal  offenders  were  tried  here,  and  the  provost  judge  was, 
besides,  invested  with  a  civil  jurisdiction,  which  extended  into 
every  justiceable  controversy,  including  the  settling  of  estates  and 
the  granting  of  divorces.  See  Mechanics'  Bank  v.  Union  Bank, 
89  U.  S.  (22  Wall.)  297,  22  L.  Ed.  871. 

In  the  summer  of  1862  General  Shepley  was  appointed  mili- 
tary Governor,  and  one  of  his  first  acts  was  an  order  issued  in 
August,  1862,  to  reopen  for  business  the  Second,  Fourth,  and 
Sixth  District  Courts  for  the  Parish  of  Orleans.  He  appointed 
judges  to  these  courts,  retaining  Rufus  K.  Howell  in  the  Sixth, 
in  which  he  was  judge  at  the  opening  of  hostilities. 

On  October  20,  1862,  President  Lincoln  by  executive  order 
established  the  Provisional  Court  of  Louisiana,  and  appointed 
Charles  A.  Peabody,  of  New  York,  to  be  judge  thereof.  Peabody 
arrived  from  New  York  in  December,  1862.,  bringing  with  him 
his  clerk,  marshal,  and  prosecuting  attorney,  all  Northern  men, 
and  the  court  was  immediately  put  in  operation.  In  the  executive 
order  the  President  granted  to  the  Judge  of  the  Provisional  Court 
all  the  power,  jurisdiction,  and  authority  previously  vested  in  the 
district  and  circuit  courts  of  the  United  States  or  in  the  state 
courts  of  Louisiana,  and,  furthermore,  made  its  judgments  final 
and  conclusive.  This  extraordinary  order  was  purely  a  war 
measure,  and  it  was  supported  by  the  arms  of  the  United  States 
until  the  fall  of  1864 ;  that  is,  until  the  federal  courts  had  resumed 
sessions,  and  the  Republican  state  Constitution  of  1864  had  been 
put  into  operation. 

The  court  was  abolished  by  Congress  July  28,  1866.  The 
regularity  of  the  Provisional  Court  was  maintained  by  the  Su- 
preme Court  of  the  United  States  in  The  Grapeshot,  76  U.  S.  (9 
Wall.)  133, 19  L.  Ed.  651. 

In  the  interim  the  Provisional  Court  sustained  the  author- 
ity granted  to  it,  and  became  in  consequence  a  tribunal  of  great 
temporary  importance.  The  judge  seems  to  have  exercised  not 
only  original  jurisdiction,  but  he  assumed  the  power  of  a  court  of 
review  over  the  state  courts.  In  the  minutes  of  the  Provisional 
Court,  under  date  of  January  12,  1863,  the  judge  entered  a  rule 
of  procedure  to  regulate  transfers  of  cases  to  his  court  "from  the 
late  Supreme  Court." 


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48  The  Louisiana  Historical  Qitarterly 

This  digression  would  be  unwarranted,  save  that  it  leads  up 
to  a  matter  which  had  long  been  treated  as  a  legend,  but  which 
seems  on  examination  to  have  had  some  foundation. 

After  the  re-establishment  of  the  three  district  courts  in  Or- 
leans and  similar  courts  in  Jefferson,  and  other  parishes  within 
federal  control,  the  right  of  appeal  from  their  decisions  to  the 
Supreme  Court  of  the  state  was  claimed  and  recognized.  This 
created  a  situation  unprovided  for  in  Shepley's  original  order,  and 
to  meet  it  the  military  Governor  appointed  a  quorum  of  judges 
for  the  Supreme  Court.  In  April,  1863,  he  named  Charles  A. 
Peabody  Chief  Justice,  and  John  S.  Whitaker  and  J.  L.  Cole  Asso- 
ciates. Peabody  was  the  judge  of  the  Provisional  Court;  Whit- 
aker was  then  sitting  under  appointment  as  judge  of  the  Second 
District  Court ;  and  Cole  had  been  on  the  Supreme  Court  and  re- 
signed in  1860,  as  we  have  previously  noted. 

That  these  persons  ever  acted  together  is  improbable.  The 
Minute  Book  of  the  Supreme  Court  shows  no  entry  after  the  ad- 
journment on  May  5,  1862,  until  the  entry  covering  the  organiza- 
tion of  the  court  of  1865.  But  Peabody  had  actually  exercised  in 
his  court  the  appellate  jurisdiction  of  the  Supreme  Court,  and  he 
took  over  the  added  honor  very  lightly.  An  extra  commission  or 
so  was  a  little  thing  to  this  judicial  autocrat  in  those  piping  days. 
He  drew  salary  as  Chief  Justice  to  the  extent  of  $3,541.66  on  his 
own  warrant  against  the  Auditor  of  the  Hahn  State  Govern- 
ment, elected  under  military  authority  in  February,  1864.  See 
Report  Journal  of  Convention  1864,  under  date  June  25,  p.  134. 

The  time  at  my  command  has  not  sufficed  to  trace  or  authen- 
ticate the  records,  if  such  exist  elsewhere.  In  4  American  Law 
Register,  for  1864-65,  a  contemporary  Philadelphia  publication, 
three  essays  appeared  on  the  Provisional  Judiciary  of  Louisiana, 
in  which  the  facts  are  given  substantially  as  above  detailed.  These 
essays  were  published  in  the  numbers  for  December,  1864,  p.  65 ; 
March,  1865,  p.  287;  and  May,  1865,  p.  385.  The  writer  speaks 
as  with  full  knowledge,  and  was  evidently  on  the  scene. 

From  internal  evidence,  together  with  the  initial  "B''  signed 
to  the  article  in  the  March  number,  and  the  place  of  composition, 
New  Haven,  Conn.,  I  am  satisfied  the  writer  was  Edward  C.  Bil- 
lings, who  was  later  the  law  partner  in  New  Orleans  of  August  De 
B.  Hughes,  clerk  in  1862-63  of  the  Provisional  Court  of  Louisiana. 
Billings  came  to  New  Orleans  at  or  just  after  the  federal  occupa- 


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Centenary  of  The  Supreme  Court  49 

tion,  and  he  practiced  law  here  until  his  appointment  as  Judge  of 
the  District  Court  of  the  United  States  for  this  district.  His 
actual  residence,  however,  was  in  New  Haven,  Conn.,  and  he  died 
there  while  an  incumbent  of  this  office. 

During  the  whole  period  1862-64  the  Supreme  Court  room 
was  occupied  by  the  United  States  military  forces.  If  any  session 
of  the  Supreme  Court  was  held  by  Peabody,  it  was  in  his  own 
room  in  the  Custom  House,  but  his  minutes  do  not  disclose  the 
fact.  In  a  slight  sketch  of  the  United  States  Provisional  Court 
written  by  Judge  Peabody  and  published  in  the  International  Re- 
view May-June,  1878,  he  intimates  that  he  exercised  the  functions 
of  both  offices  at  the  same  time.  Having  the  federal  army  at  his 
back  and  there  being  no  appeal  from  his  decisions  he  must  be 
ranked  as  a  more  powerful  magistrate  than  the  first  judge  of  the 
territory  whose  career  has  been  covered  in  the  first  paragraphs 
of  this  essay. 

In  the  preface  to  16  Annual,  written  by  S.  F.  Glenn  and  pub- 
lished in  1865,  the  reporter  says  that  the  records  and  opinions  of 
the  court  had  been  so  scattered  and  misused  by  the  military  occu- 
pants of  the  court  that  it  was  difficult  to  make  up  a  complete 
report  of  the  court's  work  of  1861-62.  The  fact  that  Glenn,  who 
was  a  contemporary,  makes  no  mention  of  the  Peabody  court  is 
at  least  slight  evidence  that  he  found  no  written  opinions.  An- 
other circumstance  throwing  doubt  on  the  question  is  that  Act  51 
of  the  General  Assembly  1865,  approved  April  3,  1865,  makes 
provision  for  the  transfer  of  the  records  of  the  Provisional  Court 
of  Louisiana  into  the  several  district  courts  of  the  state.  No  men- 
tion is  therein  made  of  any  records  to  be  transferred  to  the  Su- 
preme Court ;  nor  has  there  ever  been  any  further  legislation  on 
that  subject.  The  records  were  never,  however,  transferred,  and 
are  still  in  the  custody  of  the  United  States  Court  for  the  Eastern 
District  of  Louisiana. 

Reviewing  the  whole  matter,  the  conclusion  is  that  the  three 
persons  named  were  actually  appointed;  that  the  appointees  do 
not  appear  to  have  held  court  together ;  that  Peabody  apparently 
exercised  the  functions  of  the  Supreme  Court  at  the  same  time  he 
was  sitting  as  United  States  Provisional  Judge,  and  that  he  drew 
salary  from  the  state  as  Chief  Justice,  at  least,  until  the  meeting 
of  the  Constitutional  Convention  in  June,  1864. 


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50  The  Louisiana  Historical  Qv/arterly 

VI.    1864-1868. 

It  was  the  policy  of  President  Lincoln  in  1862-64  to  organize 
a  civil  government  in  Louisiana,  and  under  his  suggestion  an 
election  was  ordered  by  General  N.  P.  Banks,  to  be  held  on  Feb- 
ruary 22,  1864,  to  elect  a  Governor  and  other  state  officers,  to  be 
installed  on  March  4,  1864;  and  he  also  called  an  election  to  be 
held  March  28,  1864,  for  delegates  to  a  convention  to  revise  the 
Constitution  of  1852.  Both  elections  were  held  in  due  course  in 
New  Orleans  and  other  places  under  federal  control.  Michael 
Hahn  was  elected  Governor  and  J.  Madison  Wells  Lieutenant  Grov- 
ernor,  and  they  were  inaugurated  on  March  4,  1864.  At  this  time 
the  larger  part  of  the  state  was  still  in  control  of  the  Confederate 
forces. 

The  Convention  met  April  6,  1864.  It  was  composed  of  poli- 
tical waifs  and  estrays  from  nineteen  parishes,  but,  of  course, 
some  men  of  character  and  ability  were  found  in  the  gathering. 
The  debates  of  this  convention  mer^  preflored  and  printed,  and 
they  constitute  a  political  opera  bouf  f e  or  side  show  to  the  swf ol 
tragedy  of  life  in  Louisiana  in  1864. 

After  much  travail  a  Constitution  was  framed  which  was 
submitted  in  due  course  to  the  same  limited  electorate  on  Sep- 
tember 1, 1864,  and  on  September  5, 1864,  a  general  assembly  was 
elected  to  complete  the  government.  Hahn  was  elected  Senator 
in  1865  after  two  other  Senators  of  the  same  creation  had  been 
refused  admission  by  the  Senate  of  the  United  States,  and  upon 
this  election  Hahn  resigned  and  Wells  succeeded  to  the  Governor's 
chair.  Each  of  these  men  had  been  Democrats  in  the  old  days, 
but  they  were  now  classified  as  "loyal  men,"  and  they  had  been 
nominated  as  free  state  men,  i.  e.,  men  who  desired  to  bring 
Louisiana  back  into  the  Union  under  Republican  auspices. 

The  Constitution  of  1864  created  a  Supreme  Court  of  five 
justices  appointed  by  the  Governor  for  eight  years  with  a  salary 
of  $7,500  to  the  Chief  Justice,  and  $7,000  to  the  Associates.  In 
other  respects,  including  jurisdiction,  the  rules  established  in  the 
Constitution  of  1852  were  re-established,  save  that  no  territorial 
qualification  was  required. 

The  court  was  organized  by  Act  No.  11,  p.  18,  of  1864,  re- 
enacted  in  Act  82  of  1866,  p.  150,  by  which  the  state  was  divided 
into  four  appellate  districts,  with  one  Associate  Judge  from  each 
district ;  the  Chief  Justice  to  be  appointed  from  the  state  at  large. 


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Sessions  were  fixed  at  New  Orleans,  Monroe,  Natchitoches,  and 
Opelousas ;  the  first  from  November  to  June,  the  others  in  July, 
August,  and  September,  respectively. 

Appeals  concerning  the  right  to  office  were  made  returnable 
in  ten  days,  and  in  criminal  cases  at  the  next  session,  wherever 
held.  It  was  also  provided  that  no  appeal  should  be  dismissed  for 
informality,  without  opportunity  to  the  other  party  to  remedy  the 
same. 

No  attempt  was  made  to  name  the  judges  until  April  3, 1865, 
on  which  day  Governor  Wells  appointed  William  B.  Hyman,  of 
Rapides,  Chief  Justice ;  and  the  Commissions  of  Zenon  Labauve,  of 
West  Baton  Rouge,  Ruf  us  K.  Howell,  John  H.  Ilsey,  and  Robert  B. 
Jones,  of  Orleans,  Associate  Justices,  bear  the  signature  of  Gov- 
ernor Hahn.  The  judges  met  on  May  1,  1865.  Their  commissions 
were  spread  on  the  minute  book  of  the  court  of  1853,  which  was 
thereupon  closed  forever. 

The  court  thus  constituted  was,  from  a  professional  view- 
point, distinctly  mediocre,  but,  considering  the  situation,  the  ap- 
pointments might  have  been  worse. 

The  court,  as  well  as  the  government  from  which  it  sprang, 
was  a  mere  puppet  to  register  the  views  of  the  federal  authorities, 
political  and  military.  Neither  department  of  that  government 
could  say  it  had  either  a  soul  or  a  will  of  its  own,  and,  this  being 
the  case  in  the  territorial  region  where  it  was  created,  it  goes 
without  saying  that  it  was  absolutely  disregarded  in  the  remain- 
der of  the  state,  where  the  authorities  elected  in  1861  and  again 
in  1864  were  recognized  as  the  only  true  government  of  Louisiana. 
But  the  end  of  the  old  era  was  already  in  sight,  and  the  close  of 
the  civil  strife  settled  the  new  judges  in  state- wide  authority  and 
determined  their  right  to  a  place  in  the  history  of  this  court. 

Under  the  conditions  surrounding  their  appointment,  the 
judges  had  to  be  in  sympathy  with  the  winning  side,  and  this 
particular  group  was  "loyal"  and  "safe."  Hyman  had  practiced 
law  for  years  in  Rapides.  Labauve  had  accumulated  some  means 
as  a  sugar  planter  and  lawyer  in  the  old  "German  Coast"  region. 
Ilsley  had  practiced  in  Jefferson  and  adjoining  parishes.  Howell 
had  been  a  judge  before  and  during  the  War  in  Orleans ;  and  Jones 
was  an  unknown  quantity.  The  Chief  Justice  was  an  amiable, 
easy-going,  rather  indolent  man,  full  of  whimsies  and  odd  ideas. 
His  life  had  been  devoted  by  choice  to  the  unpopular  and  under- 


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52  The  Louisiana  Historical  Quarterly 

dog  side.  This  was  not  a  pose  but  a  quality  of  disposition.  His 
transition  to  the  Republican  party  was  to  be  expected,  and  he 
held  to  that  idea  until  he  died,  years  afterwards.  Aside  from  these 
characteristics,  no  one  ever  questioned  his  integrity  or  his  desire 
to  be  just.  If  he  failed,  the  times  and  his  associations  and  sur- 
roundings were  more  to  blame  than  he.  The  last  remark  may 
also  be  applied  to  Labauve  and  Ilsley.  As  to  Howell,  the  people 
generally  felt  otherwise,  probably  because  he  was  a  bitter  parti- 
san, and  he  seemed,  when  going  over,  to  have  turned  his  back  ab- 
solutely upon  his  past.  Jones  was  a  nondescript,  regarding  whose 
ability  as  a  judge  there  was  a  contemporary  jeu  d'esprit  which 
Ficklen  has  preserved  in  his  History  of  Reconstruction  in  Lou- 
isiana, a  work  of  rare  promise,  which,  unfortunately,,  the  author 
did  not  live  to  complete.  He  says  that  Jones  applied  to  a  justice 
of  the  peace  to  qualify,  i.  e.,  to  be  sworn  in,  and  the  latter  replied : 
"I  will  swear  you  in,  but  all  hell  could  not  qualify  you."  The  story 
is  probably  apocryphal.  •  I  heard  it  first  from  Sam  Myers,  an  ir- 
responsible wag  who  eked  out  a  precarious  existence  for  years  at 
this  bar,  and  who  will  long  be  remembered  for  a  witty  and  almost 
libelous  poem  on  Steele,  Attorney  General  of  a  later  era,  in  reply 
to  the  suit  by  the  latter  for  the  license  tax  then  levied  on  and  still 
exacted  from  the  profession.  Jones'  reported  work  is  scant.  He 
resigned  in  1866  and  shortly  afterward  died.  In  his  place  there 
came  to  the  bench  in  July,  1866,  one  of  the  most  unique  characters 
of  that  time,  James  G.  Taliaferro,  of  Catahoula,  who  was  born 
in  Virginia  in  1798.  He  had  first  resided  in  Mississippi  and 
thence  moved  to  Catahoula,  La.,  where  for  a  time  he  did  manual 
labor  on  a  farm.  He  was  elected  parish  judge  in  1840,  apparently 
without  having  been  licensed  as  a  lawyer ;  at  least,  without  hav- 
ing practiced.  Thereafter  he  resigned  this  position  and  followed 
the  law  for  a  livelihood.  He  was  a  member  of  the  Constitutional 
Convention  of  1852,  and  of  the  Secession  Convention  of  1861.  He 
was  one  of  the  few  members  of  that  body  who  vigorously  opposed 
secession,  and  he  declined  to  sign  the  ordinance.  He  was  a  rug- 
ged, straightforward,  old  man  who  had  convictions  which  he  did 
not  hide,  and  which  he  was  not  chary  of  expressing.  His  atti- 
tude at  this  time  was  in  accord  with  his  beliefs.  He  held  the 
respect  of  his  opponents  in  a  period  when  the  same  could  be  said 
of  few  others  in  his  situation.  He  added  strength  to  the  court 
of  1865,  and  was  returned  with  Howell  to  the  court  of  1868.    He 


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died  while  on  that  bench  in  1876,  before  the  triumph  of  the  cause 
which  during  all  his  judicial  life  he  ardently  and  insistently  join- 
ed in  delaying  and  defeating. 

The  labors  of  the  court  of  1865-1868  are  reported  in  17  to 
20  Annuals,  inclusive.  The  first  volume  is  chiefly  left-over  cases 
from  the  former  court.  The  reporter  was  S.  F.  Glenn,  who  held 
the  position  until  the  close  of  volume  18,  and  was  succeeded  in 
1867  by  Jacob  Hawkins,  who  continued  the  Reports  through  this 
court  and  until  1872  in  the  court  of  1868. 

The  court  rules  of  1853  continued  to  govern,  including  the 
four-hour  argument. 

After  1866,  that  is,  in  18,  19,  and  20  Annuals,  the  business 
of  the  court  grew  somewhat  in  importance,  and  many  serious 
cases  were  adjudicated,  but,  after  all  is  said,  it  remains  true  that 
this  period  of  our  judicial  history  presents  a  flat,  uninteresting 
surface.  The  judges  were  merely  filling  a  gap.  Out  of  doors 
chaos  was  slowly  settling  into  order ;  the  air  was  troubled  and  the 
sea  of  politics  boiled ;  great  and  fundamental  changes  were  taking 
place,  but  life  on  this  particular  judicial  side  moved  on  unperturb- 
ed. 

The  military  forces  arbitrarily  and  without  hypocrisy  settled 
all  political  and  all  public  judicial  questions.  The  judges  were 
allowed  to  piddle  with  humdrum  litigation,  but,  even  so,  care  was 
taken  to  keep  step  with  the  military  band.  The  forcible  invita- 
tion to  get  out  was  often  issued  to  their  confreres  in  the  pseudo 
state  and  city  governments,  for  the  favor  of  the  master  was  in 
those  days  as  uncertain  as  the  verdict  in  a  Roman  circus,  but  the 
patient,  obedient,  and  careful  judges  of  the  Supreme  Court  of 
1865  were  not  disturbed.  They  wore  the  livery  of  power  three 
and  one-half  years — filling  the  round  of  duty,  writing  common- 
place opinions,  and  marking  time  against  the  inevitable  change 
which  all  the  portents  foreboded. 

VII.    1868-1877. 

The  Constitutional  Convention  of  1868  was  preceded  by  the 
congressional  reconstruction  legislation  of  1866-67,  and  there  had 
been  much  blood  shed  and  turmoil  engendered  as  a  result  of  that 
legislation.  The  members  of  the  Convention  had  been  elected  by 
default — ^that  is,  the  Democrats  generally  abstained  from  voting, 
or  were  unable  to  vote — and  when  the  body  met  its  ninety-eight 


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it  The  Louisiana  Historical  Quarterly 

■iembers  were  equally  divided  between  blacks  and  whites,  and  all 
but  two  were  Republicans. 

The  Constitution  was  ratified  at  an  election  guarded  by  fed- 
eral troops,  wherein  Warmoth  was  declared  Governor  over  Judge 
Taliaferro,  who  was  of  the  same  party  faith,  but  had  received 
some  Democratic  support.  Warmoth's  large  majority  was  chief- 
ly made  up  of  negro  votes.  He  had  been  posing  as  the  Moses  who 
would  lead  them  out  of  the  Wilderness.  The  United  States  in  due 
course  recognized  the  return  of  the  state  to  the  Union,  and  mili- 
tary rule  ceased  in  Louisiana,  save  that  at  all  times  and  until 
1877  the  army  was  used  to  maintain  the  Republican  Party  in  its 
control  of  the  government  of  the  state. 

The  Constitution  created  a  Supreme  Court  of  a  Chief  Justice 
and  four  Justices  modeled  on  the  system  established  in  1864,  save 
that  the  minimum  jurisdiction  was  raised  to  $500.  The  salary  re- 
mained at  the  previous  figures,  $7,500  and  $7,000,  respectively, 
and  the  appointment  was  vested  in  the  Governor.  The  New  Or- 
leans session  was  shortened  to  close  May  31st,  and  sessions  else- 
where were  to  be  as  before  and  until  otherwise  provided  by  the 
Legislature. 

The  Legislature  of  1868-69  treated  the  judiciary  features  of 
the  Constitution  as  self-acting,  and  made  no  provisions,  save  to 
transfer  the  records  of  the  preceding  courts  to  this  new  creation. 
Acts  1868,  No.  20,  p.  20. 

Warmoth  appointed  the  Justices,  and  the  court  organized  on 
the  first  Monday  in  November,  1868,  in  New  Orleans,  at  the  Ca- 
bildo,  which  was  used  for  this  purpose  for  the  first  time.  John 
T.  Ludeling,  of  Ouachita,  was  Chief  Justice ;  James  G.  Taliaferro, 
of  Catahoula,  W.  G.  Wyly,  of  Carroll,  R.  K.  Howell,  of  Orleans, 
and  William  Wirt  Howe,  of  New  Orleans,  Associates.  All  save 
Howe  were  antebellum  residents  of  the  state,  and  more  or  less 
well-known  personages.  Howe  had  been  a  federal  soldier,  reach- 
ing New  Orleans  at  or  just  after  the  capture  in  1862,  and  while 
in  the  army  he  had  been  assigned  to  various  tasks  which  brought 
him  into  not  unfavorable  contact  with  the  people. 

The  other  judges  had  already  shown  their  devotion  to  the 
new  regime,  but  they  were  given  no  credit  for  honesty  or  good 
faith  in  their  convictions,  save  by  those  who  were  profiting  under 
the  new  conditions  or  had  risen  out  of  the  same.  The  rank  and 
file  of  the  white  race  mistrusted  the  judges  from  the  start,  and 


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Centenary  of  The  Supreme  Court  55 

there  was  much  in  the  subsequent  course  of  events  to  strengthen 
this  first  impression. 

The  court  of  1865-68  had  been  a  mere  political  plaything.  It 
was  harmless  for  evil,  and,  on  the  contrary,  had  served  a  very 
useful  purpose ;  but  the  court  of  1868-77  was  quite  a  different  in- 
stitution. The  restoration  of  the  state  to  the  Union  meant  the 
administration  of  all  its  powers  and  revenues  by  the  new  regime. 
The  part  to  be  played  by  the  highest  court  was  under  such  cir- 
cumstances a  thing  to  be  considered,  but  no  one  dreamed  then 
how  powerful  and  useful  it  was  to  become. 

The  story  of  the  eight  years  of  misrule  in  Louisiana  from 
1868  to  1876  has  never  been  fully  told.  It  is  known  in  its  black 
outlines,  and  even  in  that  shape  history  affords  few  parallels  for 
the  spoliation  and  demoralization  of  that  time.  The  Supreme 
Court  was  a  part  of  the  governmental  and  party  system  under 
whose  auspices  and  by  whose  members  this  gross  wrong  was 
perpetrated,  and  contemporary  criticism  did  not  separate  or  spare 
any  department. 

The  political  rulers  of  that  period  were  a  litigious  set.  In- 
deed, the  courts  had  never  been  called  to  decide  so  many  con- 
troversies of  a  public  or  quasi  public  nature.  The  Supreme  Court 
was  the  battlefield  where  offices  and  emoluments  were  lost  and 
won,  and  these  political  quarrels  were  not  always  aired  and  ad- 
judicated without  leaving  scars  upon  the  judicial  body.  A  poli- 
tical history  of  Louisiana  could,  indeed,  be  written  from  the  An- 
nuals of  that  period,  though  all  other  records  were  destroyed; 
but  such  history  would  not  be  impartial,  did  it  not  establish  the 
Supreme  Court  as  one  of  the  chief  instruments  in  the  overwhelm- 
ing and  subjugation  of  Louisiana  by  the  Republican  party. 

Occasionally  the  current  of  political  misrule  would  be  stem- 
med for  a  time,  and  the  court  had  periods  of  like  effort.  Howe 
particularly  was  restive  during  much  of  his  term,  and  it  is  said  his 
resignation  in  1872  marked  his  final  rebellion  against  the  politi- 
cal methods  of  the  day. 

It  is  historically  indisputable  that  the  eight  years  of  the 
Ludeling  court  left  a  bad  taste  in  the  mouth  of  the  white  people 
of  the  state.  The  underlying  reason  was,  of  course,  found  in  the 
fact  that  the  great  mass  of  the  white  population  and  the  bulk  of 
the  property  of  the  state  were  unrepresented  in  the  Republican 
Party.    The  government  of  the  time  was  by  these  unrepresented 


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56  The  Louisiana  Historical  Quarterly 

masses  considered  to  be  venal  and  corrupt.  It  was  regarded  as 
a  revolutionary  creation  established  by  the  power  of  the  national 
government,  which  was  always  ready  to  sustain  it,  and  did,  in 
fact,  maintain  it  by  show  of  force  whenever  the  reviving  Demo- 
cracy seemed  able  to  shake  it  off.  As  a  corollary  it  was  believed 
that  a  judiciary  sustained  under  such  conditions  could  not  be  bet- 
ter than  its  authors,  and  consequently  it  could  not  and  did  not 
command  the  respect  and  affection  which  has  always  been  felt 
for  the  Supreme  Court  more  happily  constituted. 

It  was  charged  and  believed  that  the  judges  were  ardent  par- 
tisans, active  in  counsel  and  advice,  and  influenced  by  the  leaders 
in  all  cases  having  a  political  aspect.  It  was  the  general  opinion 
that  no  argument  would  convince  the  court  in  any  case  where 
the  result  would  be  injurious  to  the  interests  of  the  Republican 
Party,  or  would  tend  to  advance  the  prospects  of  their  opponents. 
It  was  also  believed  that  this  intense  partisan  bias  affected  the  de- 
cision of  every  case  where  counsel,  parties,  or  witnesses  happened 
to  be  of  opposing  political  families. 

A  tribunal  thus  always  under  suspicion,  where  one  particular 
class  of  litigation  was  concerned,  was,  of  course,  on  the  defensive 
in  all  matters;  but  there  is  no  evidence  to  sustain  any  charge 
against  the  fair  conduct  of  the  general  business  of  the  court. 

The  judges  were  a  strong,  forceful  body  of  thinkers.  Indeed, 
their  undoubted  ability  and  capacity  was  the  bulwark  of  the 
wicked  government  under  which  they  served. 

The  Annuals  from  1868-72  cover  a  great  course  of  jurispru- 
dence— not  even  at  the  beginning  of  that  century  were  the  ques- 
tions at  issue  so  intricate  or  the  matters  at  stake  so  important. 
This  court  was  engaged,  as  had  been  the  case  with  the  first  court, 
in  rebuilding  a  government.  It  was  called  on  to  interpret  and 
to  enforce  legislation  which  was  intended  to  reverse  the  ancient 
and  create  a  new  order  of  things. 

A  study  of  their  decisions  helps  us  to  understand  other  dark 
eras  in  the  history  of  our  race.  These  judges  were  contempora- 
ries of  the  men  they  now  rode  with  whip  and  spur;  they  had 
ripened  under  the  same  influences,  yet  they  were  vindictive,  un- 
yielding partisans  who  abated  not  one  jolt  or  tittle  in  favor  of  their 
ancient  fellowship.  So  far  as  in  them  lay  they  established  black 
^supremacy,  and  drove  the  last  nail  into  white  authority.  They 
wrote  a  jurisprudence  which  on  racial  and  public  questions  was 


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Centenary  of  The  Supreme  Court  57 

specious  and  unsound,  and  it  was  torn  to  pieces  by  the  succeed- 
ing court,  and  by  subsequent  legislation ;  indeed,  the  whole  hope  of 
life  in  this  part  of  the  world  ran  contrary  to  the  ruling  dogmas 
of  that  frightful  time,  supported  by  the  ability  and  authority  of 
this  high  tribunal. 

But  when  we  have  brought  this  black  indictment,  it  is  our 
duty  to  say  that  in  other  aspects,  on  general  questions  of  jurispru- 
dence, this  bench  was  the  equal  of  any.  No  student  of  the  law  can 
deny  the  learning  and  the  strength  and  ability  of  the  reasoning  by 
which  many  great  questions  were  then  settled — decisions  which 
have  been  re-examined  and  maintained  by  all  succeeding  courts. 

The  opinions  of  this  period  are  published  in  20-28  Annuals, 
inclusive,  with  Jacob  Hawkins  as  Reporter  until  1873 — a  grim, 
stark,  hard  partisan  of  the  ruling  faith,  who  ultimately  resigned 
to  take  the  judgeship  of  the  Superior  District  Court  of  Orleans. 
This  was  a  legislative  monstrosity  created  in  a  wild  revel  of  power 
to  rid  the  dominant  faction  of  a  Democratic  judge  recently  elected 
to  fill  the  Eighth  District  Court  of  the  same  parish.  A  New  Or- 
leans newspaper  embalmed  court  and  judge  in  a  fierce  and 
stinging  epigram,  which  will  be  found  reported  in  the  libel  suit 
which  ensued.    Hawkins  v.  Publishing  Co.,  29  La.  Ann.  134. 

To  succeed  Hawkins  as  Reporter,  the  Supreme  Court  ap- 
pointed Charles  Gayarre,  a  gentleman  and  a  scholar  of  the  old 
regime,  reduced  in  fortune  and  passing  in  retirement  the  evening 
of  a  long  and  brilliant  life.  It  was  a  graceful  and  an  unexpected 
act — a  gleam  of  light  in  a  dark  period,  which  may  excuse  this  di- 
gression. Mr.  Gayarre  remained  until  that  bench  was  extinguish- 
ed in  the  overthrow  of  1877. 

The  court  as  originally  constituted  remained  unbroken  until 
November,  1872,  when  Howe  resigned.  The  political  alignments 
of  the  day,  -strange  to  tell,  had  brought  Warmoth  into  touch  with 
the  Democratic  Party  and  had  divided  him  from  the  regular  fac- 
tion of  his  own  party.  Guided  by  ^his  new  Associates,  Warmoth 
appointed  John  H.  Kennard  to  succeed  Howe,  on  December  3, 
/872,  and  Mr.  Kennard  assumed  his  duties  on  the  same  day, 
and  served  until  February,  1873,  when  he  was  unseated,  as  we 
shall  now  relate. 

When  Warmoth  broke  from  his  quondam  associates  they  re- 
sorted to  one  of  the  familiar  tricks  of  the  time.  He  was  impeach- 
ed, and  while  this  was  pending  Pinchback,  the  Lieutenant  Gov- 


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58  The  Louisiana  Historical  Quarterly 

ernor  of  Louisiana,  appointed  Philip  Hickey  Morgan  successor 
to  Howe.  The  State  Senate  did  not  confirm  Kennard,  but  did 
confirm  Morgan  on  January  4,  1873,  and  proceedings  were 
promptly  instituted  before  the  Superior  District  Court  to  try  title 
to  the  seat.  The  suit  was  brought  in  the  name  of  the  state,  on  the 
relation  of  A.  P.  Field,  Attorney  General,  and  was  tried  sum- 
marily. It  was  decided  below  in  Morgan's  favor,  and  this  judg- 
ment was  affirmed  in  the  Supreme  Court  on  January  30,  1873 
(25  La.  Ann.  238),  and  Mr.  Morgan  produced  his  commission  and 
was  seated  Saturday,  February  1,  1873.  The  sole  reviewable  is- 
sue— whether  there  was  due  process  of  law — ^was  presented  to  the 
Supreme  Court  of  the  United  States  by  Mr.  Kennard,  and  he  lost 
out  there  also.  92  U.  S.  480,  23  L.  Ed.  478.  Morgan  was  a  lawyer 
of  standing  and  ability,  and  the  bench  in  this  respect  lost  nothing, 
but  the  appointment  preserved  the  old  political  phalanx  which 
had  been  temporarily  broken  by  Kennard's  service. 

Taliaferro  died  in  October,  1876,  and  John  E.  Leonard  was 
appointed  by  Kellogg,  taking  his  seat  at  the  opening  of  the  Novem- 
ber term,  1876.  As  a  matter  of  fact  the  eight-year  term  of  the 
Justices  expired  by  limitation  in  November,  1876,  but  the  Justices 
continued  to  sit  until  December  23,  1876,  when  the  court  adjourn- 
ed for  the  Christmas  recess,  to  meet  again  on  Tuesday,  January 
9,  1877. 

During  that  recess  Kellogg  reappointed  Ludeling  Chief 
Justice  and  Leonard  Associate  Justice  for  the  full  term.  He  also 
appointed  John  E.  King  to  succeed  Wyley,  and  announced  that 
the  places  of  Morgan  and  Howell  would  be  filled  by  "Governor" 
Packard. 

VIII.    1877-1880. 

The  state  election  held  on  November  7,  1876,  was  involved  in 
the  Returning  Board  troubles  of  that  winter,  with  the  result  that 
dual  governments  were  inaugurated  in  the  ensuing  January.  Al- 
most the  first  act  of  Governor  Nicholls  was  the  appointment  of  a 
full  bench  for  the  Supreme  Court.  These  persons  qualified  on 
January  8,  1877,  before  A.  L.  Tissot,  District  Judge  of  Orleans, 
and  early  in  the  morning  of  the  9th  secret  preparations  were 
made  by  the  Nicholls  police  and  militia  to  capture  the  Supreme 
Court  building  and  to  seat  these  judges. 

The  Packard  government  had  installed  its  own  police  in  the 
building,  and  at  11  o'clock  on  Tuesday,  January  9, 1877,  Ludeling, 


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Centenary  of  The  Supreme  Court  59 

Leonard  and  King  called  upon  the  sheriff  to  open  court,  which  he 
refused  to  do,  and  he  was  thereupon  suspended,  and  a  sheriff  ap- 
pointed by  the  court,  who  performed  the  usual  ceremony.  Opi- 
nions were  handed  down  by  Ludeling  and  Leonard,  and  on  motion 
of  the  Packarjd  Attorney  General  the  court  adjourned. 

About  noon  the  NichoUs  police  demanded  the  surrender  of 
the  building,  and  after  some  delay  physical  possession  was  taken, 
and  the  NichoUs  Justices  were  brought  into  the  court-room,  where 
at  noon  the  court  was  opened  by  the  sheriff  of  Orleans  parish. 
The  commissions  of  the  Justices  were  spread  on  the  minutes.  Al- 
fred Roman  was  appointed  clerk,  several  motions  and  orders  were 
entered,  and  a  distinguished  lawyer  of  the  New  Orleans  bar  pro- 
nounced a  mortuary  eulogy — not  on  the  old  court,  but  on  a  re- 
cently deceased  district  judge — and  thereupon  the  court  adjourn- 
ed out  of  respect  to  his  memory. 

The  capture  of  the  courtroom  and  the  installation  of  these 
Justices  was  a  political  master  stroke,  and  gave  the  NichoUs  gov- 
ernment a  solidity  and  authority  that  was  of  immense  service  as 
matters  then  stood.  For  a  time  it  was  feared  President  Grant 
would  order  the  dispersal  of  the  court,  but  ultimately  he  recogniz- 
ed the  status  quo  and  the  NichoUs  Justices  remained  in  possession 
of  the  courtroom,  which  was,  moreover,  guarded  day  and  night 
by  volunteer  militia.  After  President  Hayes'  inauguration  the 
support  of  the  army  was  withdrawn,  and  the  Packard  govern- 
ment disintegrated. 

The  court  as  thus  constituted  was  Thomas  Courtland  Man- 
ning, of  Rapides,  Chief  Justice;  Robert  H.  Marr,  of  Orleans,  Al- 
cibiade  De  Blanc,  of  St.  Martin,  William  B.  G.  Egan,  of  Caddo,  and 
WiUiam  B.  Spencer,  of  Concordia,  Associates.  They  were  with- 
out exception  leaders  of  the  Democracy,  and  had  taken  active  part 
in  all  the  stirring  events  of  reconstruction. 

The  sixth  Chief  Justice  had  served  on  the  bench  during  the 
War,  as  previously  noted.  Marr  had  been  counsel  in  aU  the  litiga- 
tion from  the  Test  Oath  Case  onward,  by  which  n\uch  of  the  evil 
legislation  of  Congress  against  the  Southern  white  people  had 
been  emasculated,  and  he  was  also  one  of  the  foremost  inciters 
of  the  armed  attack  on  the  Kellogg  government  on  September  14, 
1874.  De  Blanc  had  been  a  soldier  in  Virginia  with  NichoUs,  and 
he  was,  besides,  the  foremost  citizen  of  his  part  of  the  state,  en- 
joying there  respect  and  veneration  second  only  to  that  extended 


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60  The  Louisiana  Historical  Quarterly 

to  Governor  NichoUs.  Spencer  had  held  similar  positions  in  his 
special  bailiwick.  In  short,  the  new  Justices  were  recognized 
everywhere  as  the  flower  of  the  Forlorn  Hope  which  had  in- 
cessantly waged  war  upon  the  Republican  stronghold  in  this 
state  during  the  seamy  years  of  1868-1876. 

There  were  scores  of  deserving  lawyers  who  could  have  filled 
the  positions  with  equal  skill  and  dignity.  This  was  particularly 
the  case  in  Orleans  parish,  where  the  faith  had  been  kept  under 
circumstances  of  professional  loss  and  judicial  ostracism  which 
few  now  living  can  appreciate.  There  was,  however,  no  heart- 
burning or  sulking  among  the  leaders.  On  the  contrary,  they  con- 
tinued the  good  fight  here  and  in  Washington  until  success  crown- 
ed the  patriotic  labor. 

At  its  first  sitting  the  court  entered  orders  reassigning  all 
cases  under  advisement,  and  also  rearranged  the  fixed  causes  so 
that  business  could  be  resumed  on  the  day  succeeding.  The  in- 
stallation was  necessarily  a  dramatic  spectacle — literally  it  was 
the  act  of  an  embattled  people,  but  the  Justices  gave  no  outward 
manifestation  that  any  unusual  or  extraordinary  event  was  in 
progress.  The  minutes  make  no  note  of  the  abortive  session  of 
the  evicted  judges,  nor  is  any  mention  made  of  the  physical  cap- 
ture of  the  seats. 

On  the  next  morning,  January  10,  1877,  the  routine  business 
was  taken  up,  and  thereafter  the  tribunal  never  faltered  or  de- 
layed in  the  ordinary  conduct  of  affairs.  When  the  rival  govern- 
ment passed  away  forever,  the  incident  fell  unnoted  upon  a  court 
secure  in  the  confidence  and  respect  of  all  the  people. 

Percy  Roberts  succeeded  Gayarre  as  Reporter,  and  his  labors 
cover  the  prior  1877- April,  1880,  that  is,  29  to  32  La.  Annual, 
inclusive.  The  cases  reported  include  many  interesting  commer- 
cial and  general  questions,  and  several  of  transcendent  temporary 
importance. 

Justice  Egan  died  in  November,  1878,  and  Edward  Douglass 
White,  of  Orleans,  now  Chief  Justice  of  the  United  States,  was 
appointed  on  January  10,  1879,  for  the  unexpired  term.  He 
was  seated  January  13,  1879,  and  his  first  reported  opinion  is 
Charpaux  &  Valette  v.  Bellocq,  31  La.  Ann.  165-169.  A  common- 
place issue  is  here  dissected  by  a  sound  civilian,  and  the  conclu- 
sions are  illuminated  by  an  argument  that  could  only  have  been 
made  by  a  devoted  student  of  the  principles  of  the  civil  law.    The 


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Centenary  of  The  Supreme  Court  61 

opinion  is,  furthermore,  a  notable  illustration  of  White's  judicial 
methods — the  concise,  lucid  statement,  the  separation  of  the  issue, 
the  massing  of  words,  each  chosen  for  its  power  in  the  onset,  the 
march  of  the  argument  to  the  irresistible  conclusion — all  these  are 
developed  and  displayed  with  an  art  and  skill  that  delight  the 
laboring  craftsman. 

Considering  the  circumstances  preceding  their  appointment, 
it  is  remarkable  that  few  cases  of  a  political  nature  reached  this 
court.  It  was  current  gossip  that  there  was  an  understanding 
that  an  amnesty  or  truce  would  be  observed  by  the  new  govern- 
ment concerning  all  political  offenses. 

In  any  event,*there  were  only  two  cases  which  brought  up  the 
past.  One  was  called  a  "State  Trial,"  and  was  followed  with  gen- 
eral interest.  This  was  an  indictment  by  the  state  against  T.  C. 
Anderson,  member  of  the  Returning  Board,  which  it  was  claimed 
had  reversed  the  will  of  the  voters  in  the  state  and  presidential 
elections  of  1876.  He  was  charged  with  altering,  forging,  and 
counterfeiting -the  returns  of  the  presidential  election  in  Vernon 
parish,  and  he  was  convicted  before  the  Superior  Criminal  Court 
of  Orleans.  The  information  was  quashed  in  the  Supreme  Court 
on  a  technicality,  and  the  defendant  was  not  further  prosecuted. 
The  opinion  of  the  court  gave  opportunity  to  express  some  strong 
views  concerning  the  offense,  and  it  was,  indeed,  a  case  that  could 
easily  have  been  determined  the  other  way,  if  the  new  regime  had 
been  imbued  with  a  desire  for  revenge.  See  State  v.  Anderson,  30 
La.  Ann.  557. 

The  other  case  was  the  contested  election  over  the  office  of 
sheriff  of  Lafourche,  and  it  is  historically  interesting,  showing 
the  political  methods  of  that  day.  The  court  here  determined  in 
favor  of  the  Democratic  candidate.  See  Webre  v.  Wilton,  29  La. 
Ann.  610. 

Two  other  cases  should  be  noted:  29  La.  Ann.  590,  where 
the  court  decided  that  the  decrees  of  courts  held  within  the  Con- 
federate lines  were  valid  and  binding.  The  state  of  war  then 
existing  was  shown  by  authority  not  to  affect  the  ordinary  course 
of  legal  proceedings  with  parties  properly  impleaded.  The  Juris- 
diction was  maintained  and  the  judgment  held  to  be  res  adjudi- 
cata. 

In  Southern  Bank  v.  Mayor,  etc.,  31  La.  Ann.  1,  the  consti- 
tutionality of  the  consolidated  bond  debt  of  the  city  of  New  Or- 


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62  The  Louisiana  Historical  Quarterly 

leans  was  attacked,  and  the  court  sustained  the  assault  and  in- 
validated the  issue.  This  case  was  an  extremely  important  one, 
and  its  effect  was  to  release  the  municipality  from  a  great  part  of 
its  indebtedness.  The  decision  was,  however,  reversed  by  the  Su- 
preme Court  of  the  United  States  in  105  U.  S.  302,  26  L.  Ed.  1090. 

The  new  government  had  scarcely  been  secured  in  its  author- 
ity before  an  agitation  for  a  new  Constitution  gathered  head,  and 
in  July,  1879.  a  Constitution  was  adopted  which  shortened  the 
terms  of  the  Justices,  and  provided  for  a  reorganization  of  the 
court  in  April,  1880. 

The  necessity  for  this  action  was  not  evident  then,  and  his- 
torically is  classed  under  that  ingratitude  of  rulers  which  the  old 
proverb  impresses.  The  executive,  legislative,  and  judicial  depart- 
ments had  each  borne  the  brunt,  and  throguh  their  efforts  the 
state  had  been  restored  to  its  proper  place  among  representative 
governments.  A  vote  of  no  confidence  was  hardly  to  be  expected, 
nor  is  it  justified  in  history,  even  though  it  constantly  teaches 
that  the  ways  of  politics  are  not  always  scrutable.  The  writer 
still  recalls  his  own  poignant  suffering  over  the  discard  of  these 
Justices,  whom  all  the  young  men  of  that  time  regarded  as  per- 
sonal friends,  and  to  whose  consideration  he  particularly  owes 
the  ability  to  take  an  official  part  in  this  ceremony. 

The  personal  characteristics  of  the  Justices  of  the  court  of 
1877-1880  needs  a  separate  essay.  Indeed,  a  study  of  the  work 
of  the  Chief  Justice  alone  would  yield  much  material  to  interest 
and  entertain.  The  pure,  chaste,  and  elegant  English  of  his 
opinions  was  not  infrequently  sweetened  by  an  Attic  salt,  though 
sometimes  he  used  a  coarser  material.  He  had  a  dignity  of  per- 
son— a  carriage — which  seemed  very  natural  to  his  intimates, 
but  which  was  responsible  for  many  stories.  This  habit  affected 
his  conduct  in  many  little  ways;  for  instance,  his  signature  was 
seldom  other  than  his  surname,  and,  one  of  his  contemporaries 
speaking  of  this  affection  said,  there  were  only  a  few  men  in  the 
history  of  the  race  who  claimed  the  right:  "Moses,  Caesar,  Na- 
poleon— Manning." 

After  his  retirement  Judge  Manning  edited  and  published  the 
unreported  cases  decided  by  the  Supreme  Court  during  his  term 
as  Chief  Justice — a  valuable  addition  to  the  reports  of  the  state. 


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Centenary  of  The  Supreme  Court  63 

IX.    1879-1898. 

The  Constitution  of  1879  created  a  Supreme  Court  on  the 
frame  of  its  predecessors.  The  Justices  were  apportioned  to 
four  districts,  covering  the  whole  state.  Two  were  allotted  to  the 
First  District,  comprising  Orleans,  and  the  five  circumjacent 
river  parishes.  The  salary  was  reduced  to  $5,000,  and  the  term 
lengthened  to  twelve  years;  the  four  Associates  first  appointed 
to  go  out  at  intervals  of  two  years,  their  successors  to  be  commis- 
sioned for  the  full  term. 

Minimum  jurisdiction  was  based  on  a  value  in  civil  cases  of 
$1,000,  and  appeals  in  suits  for  divorce  and  separation  from  bed 
and  board  were  made  justiciable  by  express  grant,  and  for  the 
first  time  in  any  Constitution  of  the  state.  In  other  respects  the 
powers  of  the  court  remained  as  before,  but  a  new  element  was 
added  by  article  90  providing  that  it  should  "have  control  and 
general  supervision  over  all  inferior  courts."  The  profession 
rather  hastily  assumed  that  under  the  writs  granted  in  the  same 
artioie  tiie  <XMtrt  was  empowered  to  review  any  case  where  the 
lawML  of  bet  aBd  Isw  would  be  presented  on  the  record,  but  the 
ooort  qwckly  constmed  this  gniit  in  a  way  to  shut  off  the  legal 
avalanche  that  would  have  followed  the  first  impression. 

The  Justices  were  appointed  by  Governor  Wiltz,  and  the 
court  organized  on  Monday,  April  5,  1880,  at  New  Orleans,  with 
Edward  Bermudez*  of  Orleans,  Chief  Justice ;  Felix  P.  Poche,  of 
St.  James,  Robert  B.  Todd,  of  Morehouse,  William  M.  Levy,  of 
Natchitoches,  and  Charles  E.  Fenner,  of  Orleans,  Associates.  The 
new  corps  of  judges  were  lawyers  of  standing  in  their  respective 
domiciles,  and  three  of  them  were  destined  to  leave  a  deep  im- 
pression on  the  judicial  record. 

The  seventh  Chief  Justice  was  a  Creole,  and  yielded  to  none 
in  pride  of  race  and  position.  He  was  the  son  of  Joachim  Ber- 
mudez,  sometime  parish  judge  in  Orleans  under  the  Constitution 
of  1812,  who  had  ruled  for  many  years  with  a  determination  and 
authority  that  furnished  one  of  the  best  arguments  for  the  aboli- 
tion of  that  judicial  system. 

The  Chief  Justice  was  in  1880  in  his  prime — a  big,  vigorous 
man,  with  a  will  of  iron.  He  was  a  ripe  scholar  in  the  texts  of 
the  civil  law,  and  was  obsessed  with  a  conviction  that  mastery  of 
this  science  entitled  his  opinions  to  unqualified  respect.  At  the 
bar  he  was  apt  to  be  censorious,  particularly  to  the  juniors  who 


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64  The  Louisiana  Historical  Qvxirterly 

crossed  swords  on  his  chosen  field.  There  is  no  doubt  that  on  the 
bench  he  earnestly  endeavored  to  discover  the  light  hidden  per- 
haps under  the  bushel  by  counsel  presenting  such  questions,  but 
it  was  a  great  and  costly  expenditure  of  his  strength  and  a  severe 
trial  to  his  temper,  and  he  did  not  always  persevere  in  his  good 
intentions.  He  had  a  habit  that  grew  on  him,  to  state  a  proposi- 
tion and  then  to  sustain  it  with  great  array  of  authorities,  usually 
by  citation  of  book  and  folio  without  the  title  of  the  case.  Typo- 
graphical and  other  familiar  mischances  sometimes  made  verifi- 
cation of  these  references  a  grim  satire,  which  the  bar  was  not 
slow  to  advertise. 

The  senior  associate.  Poche,  was  also  a  Creole  and  a  civilian, 
but  he  had  more  savoir  faire,  and  did  not  ride  full  tilt  upon  the 
point  at  issue  with  all  his  armor  clanking  and  rattling.  When  he 
disagreed  with  an  argument  he  could  say  so  with  as  much  skill 
as  the  Chief  Justice,  but  he  did  not  add  to  it  the  terror  of  voice 
and  gesture,  nor  seek  to  overwhelm  by  a  rush  of  citation.  At  first 
the  two  Creoles  seemed  to  work  with  one  mind,  but  Poche  gradual- 
ly ceased  to  lean  on  the  Chief  Justice,  and  when  some  case  would 
bring  about  a  disagreement  the  jurisprudence  would  be  inriched 
by  the  clash  of  two  strong,  tenacious  disputants,  each  pouring 
out  a  store  of  knowledge  in  the  effect  to  overthrow  the  ideas  of  the 
other. 

Fenner  was  in  all  respects  the  antitype  of  these  two.  He  was 
a  master  of  precise  thought,  and  clothed  his  argument  in  expres- 
sive language.  Deeply  versed  in  both  systems,  he  had  in  this 
respect  an  advantage  over  Bermudez  and  Poche — a  mental  ambi- 
dexterity which  often  carried  the  point  by  mere  weight  of  reason- 
ing. 

In  the  appointments  Wiltz  had  given  the  shortest  term  to 
Fenner,  four  years,  and  he  was  reappointed  in  1884.  Levy  had 
the  six-year  term,  Todd  eight,  and  Poche  ten  years.  Levy  died 
in  the  recess  of  1882,  and  Judge  Manning  came  back  to  the  bench 
under  appointment  of  Governor  McEnery,  to  fill  the  remainder 
of  Levy's  term.  He  thus  achieved  the  distinction  of  being  thrice  a 
member  of  the  court  under  different  commissions  and  Constitu- 
tions. He  was  not  reappointed,  however,  and  Lynn  B.  Watkins, 
of  Red  River,  was  named  by  McEnery  on  April  19,  1886.  for  the 
new  term  of  twelve  years,  and  he  was  reappointed  in  1898. 


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Centenary  of  The  Supreme  Court  65 

On  the  expiration  of  Justice  Todd's  term,  Ex-Governor 
Samuel  D.  McEnery  took  the  place  by  appointment  of  Governor 
Nicholls  on  June  11,  1888,  and  in  1900  he  was  reappointed  for 
twelve  years. 

Poche's  term  expired  in  1890,  and  he  was  succeeded  by  Jos- 
eph A.  Breaux,  of  New  Iberia,  who  was  appointed  by  Governor 
Nicholls  on  April  5, 1890,  and  reappointed  in  1902. 

The  term  of  Chief  Justice  Bermudez  expired  in  1892,  and  he 
was  replaced  by  Francis  T.  Nicholls,  appointed  by  Governor  Fos- 
ter April  5,  1892.  The  eighth  Chief  Justice  had  just  surrendered 
the  Governor's  chair  to  Foster,  whose  first  act  was  this  appoint- 
ment. In  April,  1904,  Chief  Justice  Nicholls  was  reappointed, 
but  under  the  rule  of  the  Constitution  of  1898,  he  came  back  as 
an  Associate  Justice,  and  Breaux.  the  senior  Associate  Justice, 
advanced  to  the  seat  of  Chief  Justice. 

In  1893  Fenner  resigned,  and  Charles  Parlange  was  commis- 
sioned for  the  remainder  of  that  term  by  Governor  Foster  on  Sep- 
tember 1,  1893. 

In  1894  Parlange  accepted  President  Cleveland's  appoint- 
ment to  be  judge  of  the  United  States  District  Court  for  the 
Eastern  District  of  Louisiana,  and  accordingly  resigned  as  Justice 
of  the  Supreme  Court  of  Louisiana. 

On  February  1,  1894,  Henry  C.  Miller,  of  Orleans,  was  ap- 
pointed in  Parlange's  place,  and  in  1896  he  was  commissioned 
for  a  full  term. 

In  1894,  Act  69,  p.  80,  the  Legislature  repealed  the  itinerary 
system  under  which  the  court  had  held  country  sessions  in  mid- 
summer ever  since  1812.  By  this  statute  the  seat  of  justice  was 
fixed  at  New  Orleans,  and  all  appeals  were  made  returnable 
thereto  at  stated  periods  for  each  district.  For  some  time  before 
the  passage  of  the  act  of  1894  the  court  was  sitting  in  the  summer 
and  fall  of  each  year  at  Monroe,  Opelousas,  and  Shreveport. 

In  1896,  Act  66,  p.  98,  the  court  was  authorized  to  hear  and 
decide  in  chambers  out  of  term  time  all  matters  addressed  to  its 
supervisory  jurisdiction. 

Under  the  rule  established  in  these  laws  the  court  sat  at  New 
Orleans  from  the  first  Monday  of  November  to  the  end  of  June. 

This  was  afterwards  changed  to  begin  on  the  first  Monday  in 
October,  by  Act  149  of  1906. 


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66  The  Louisiana  Historical  Qimrterly 

By  Act  92  of  1900,  p.  150.  the  old  system  of  particular  return 
days  was  abolished,  and  now  all  appeals  are  returnable  in  not  less 
than  fifteen  nor  more  than  sixty  days. 

In  1897  Justice  McEnery  resigned  to  accept  the  office  of 
Senator  from  Louisiana  in  the  Congress  of  the  United  States, 
and  on  March  4,  1897,  Governor  Foster  appointed  Newton  C. 
Blanchard  for  the  remainder  of  McEnery's  term.  The  latter 
had  just  finished  his  term  as  Senator,  from  Louisiana. 

The  Reporter  of  the  decisions  of  the  Supreme  Court  became 
a  Constitutional  officer  in  1879  (art.  88). 

During  the  period  1880-1897  the  opinions  were  reported  by 
Henry  Denis,  of  the  New  Orleans  bar,  from  1880  to  1895,  cover- 
ing 32  La.  Annual  521  to  46  La.  Annual,  inclusive.  Commencing 
with  47  Annual  (1895),  Walter  H.  Rogers,  also  a  New  Orleans 
lawyer,  reported  the  decisions  until  50  Annual,  inclusive  (1898). 

The  work  of  the  court  under  the  Constitution  of  1879  has 
been  part  of  the  every-day  life  of  your  Honors,  and  is,  I  am  glad  to 
say,  equally  familiar  to  many  of  those  who  are  participating  in 
this  ceremony.  Speaking  with  first  knowledge.  Judge  Fenner 
said,  in  his  eulogy  on  Poch6  June  22, 1895  (45  An. )» that  the  work 
was  performed  "in  a  formative  period  of  our  jurisprudence,  in- 
volving the  interpretation  of  a  new  and  original  Constitu- 
tion, bristling  with  novel  principles,  powers,  and  limitations, 
and  requiring  the  entire  readjustment  of  our  jurisprudence 
on  many  subjects  and  its  adaptation  to  changed  conditions"; 
and  he  said  further  that  the  court  had  succeeded  "in  the 
momentous  task  of  putting  into  operation  the  complicated  machi- 
nery of  the  new  government,  so  that  it  should  run  with  the 
least  possible  friction  or  injury  to  essential  principles  or  indivi- 
dual right  and  governmental  power,  and  above  all  in  harmony 
with  the  Constitution  of  the  United  States." 

X.  1898-1913. 
On  November  12,  1898,  a  new  constitution  was  adopted,  and 
great  and  fundamental  changes  were  made  in  the  judiciary  system 
of  the  state.  The  appellate  jurisdiction  of  the  Supreme  Court  was 
broadened,  and  the  minimum  value  of  $2,000,  established  as  a 
basis  by  the  constitutional  amendment  which  had  been  proposed 
by  Act  125  of  1882,  was  retained.  Original  jurisdiction  was  con- 
ferred wherever  necessary  to  enable  it  to  determine  questions  of 
fact  affecting  its  own  jurisdiction  in  any  case  pending  before  it. 


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Centenary  of  The  Supreme  Court  67 

A  new  matter  of  great  importance  was  the  grant  of  original 
jurisdiction  in  all  matters  touching  professional  misconduct,  with 
power  to  disbar. 

The  salary  was  left  in  the  legislative  discretion,  not  to  be  less, 
however,  than  $5,000.  The  term  remained  twelve  years,  and  the 
Governor  retained  the  appointive  power,  but  a  new  feature  was 
introduced,  providing  that  when  the  office  of  Chief  Justice  be- 
comes vacant  the  Associate  Justice  longest  in  service  shall  by 
virtue  of  that  service  become  Chief  Justice. 

The  session  was  limited  to  New  Orleans  without  any  author- 
ity to  the  Legislature  to  prescribe  other  places. 

Power  was  granted  to  the  court  to  provide  for  reporting  the 
decisions  and  for  the  publication  thereof  by  contract  to  the 
lowest  bidder.  Publication  of  concurring  and  dissenting  opinions 
was,  however,  prohibited.  The  judicial  history  of  our  race  should 
have  been  a  warning  against  legislation  of  this  character. 

A  meager  allowance  was  made  for  the  employment  of  ama- 
nuenses by  the  Justices. 

The  Legislature  was  required  to  make  provision  for  a  suitable 
and  commodious  building  for  the  court  and  its  records — ^a  clause 
which  was  carried  into  effect  in  a  worthy  and  generous  way  by 
the  erection  of  the  house  in  which  the  court  now  sits. 

At  the  time  the  Constitution  of  1898  became  effective  the 
roll  of  the  Supreme  Court  was  as  follows :  Nicholls,  Chief  Justice ; 
Watkins,  Breaux,  Miller,  and  Blanchard,  Associates. 

The  schedule  provided  that  the  Supreme  Court  here  estab- 
lished should  be  construed  to  be  the  same  court  as  the  one  then 
existing,  and  that  all  persons  in  office  at  the  adoption  of  the  Con- 
stitution should  serve  until  the  expiration  of  existing  terms. 

In  1899  Justice  Miller  died,  and  Francis  A.  Monroe  was  ap- 
pointed on  March  22,  1899,  and  served  the  remainder  of  Miller's 
term,  and  in  1908  was  elected  by  the  people  and  without  opposition 
to  the  term  he  is  now  filling — ^the  first  judge  of  the  Supreme 
Court  to  be  elected  by  the  people  since  Duffel's  election  in  1860. 
At  the  time  of  his  appointment  Justice  Monroe  had  been  sitting 
continuously  since  1876  on  the  district  bench  of  Orleans  parish. 

In  1901  Justice  Watkins  died,  and  Olivier  O.  Provosty,  of 
Pointe  Coupee,  was  appointed  his  successor  on  March  16,  1901, 
and  in   1910  was  elected  to  a  new  term. 


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68  The  Louisiana  Historical  Quarterly 

In  1903  Justice  Blanchard  resigned  in  order  to  enter  the  can- 
vass for  the  Democratic  nomination  for  the  office  of  Governor  of 
Louisiana,  and  Alfred  D.  Land  was  appointed  to  the  vacancy  by 
Governor  Heard  on  October  17,  1903.  Justice  Land  was  a  candi- 
date for  renomination,  but  was  defeated  by  Luther  E.  Hall,  now 
Governor  of  Louisiana,  who  resigned  before  his  judicial  term 
began,  and  after  being  elected  Governor.  Thereupon  Justice 
Land  was  re-elected  in  1912  without  opposition. 

On  April  4,  1904,  Justice  Breaux  was  advanced  to  Chief 
Justice,  under  the  rule  of  seniority,  the  term  of  Chief  Justice 
Nicholls  having  expired.  The  Ninth  Chief  Justice  will  continue  to 
hold  that  office  until  April,  1914,  when  his  second  term  of  twelve 
years  will  have  expired. 

In  November,  1904,  an  amendment  to  the  Constitution  was 
adopted,  making  the  office  of  Justice  of  the  Supreme  Court 
elective  by  the  people. 

Another  amendment  of  the  same  year  leaves  the  court  dis- 
cretion to  regulate  its  session,  provided  it  shall  begin  "not  later 
than  the  first  Monday  in  the  month  of  November,  and  ending 
not  sooner  than  June  30th."  However,  by  Act  149  of  1906,  before 
referred  to,  the  Legislature  itself  fixed  the  term  to  begin  on  the 
first  Monday  of  October. 

In  1906  (Act  74,  p.  115)  the  Legislature  increased  the  salary 
to  $6,000. 

In  1910,  by  constitutional  amendment,  it  was  established  that 
any  Justice  may  retire  at  the  age  of  seventy-five,  on  fulV  pay, 
after  not  less  than  fifteen  years'  continuous  service. 

In  1911  Justice  Nicholls  retired  under  this  law,  and  Walter 
B.  Sommerville,  of  Orleans,  was  elected  in  his  place  in  March, 
1911. 

In  the  October  term,  1910,  the  Supreme  Court  moved  from 
the  Cabildo  into  the  new  courthouse. 

And  now,  on  this  1st  day  of  March,  1913,  the  court  is  com- 
posed of  Joseph  A.  Breaux,  Chief  Justice;  Francis  A.  Monroe, 
Olivier  O.  Provosty,  Alfred  D.  Land,  and  Walter  B.  Sommerville. 

Under  the  authority  conferred  by  the  Constitution,  the  con- 
tract for  the  publication  of  the  Reports  was  first  let  to  a  local 
publisher  who  printed  the  volumes  down  to  108  La.,  inclusive. 
Thereafter  the  West  Publishing  Company  received  the  contract. 
It  had  been  publishing  a  rival  edition.  With  volume  109  the  Re- 
port appears  in  double-column  pages. 


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Centenary  of  The  Supreme  Court  69 

In  1900  (Act  87,  p.  135)  the  Legislature  authorized  the  State 
Printer/  with  the  approval  of  the  judges  of  the  Supreme  Court, 
to  contract  with  "a  competent  lawyer"  to  edit  and  index  the  deci- 
sions of  the  court  before  publication  thereof.  The  act  eliminated 
the  office  of  "Reporter  to  the  Supreme  Court,"  and  the  opinions 
are  now  published  with  the  name  of  the  editor. 

Thomas  H.  Thorpe  succeeded  Walter  H.  Rogers  as  Reporter 
in  1899  (51  An.),  and  he  became  the  first  editor  under  the  act 
of  1900,  and  continued  in  office  until  1907  (118  La.) ,  when  he  was 
succeeded  by  Charles  G.  Gill,  who  is  the  present  incumbent. 

In  June,  1900,  the  court  by  order  closed  the  series  Louisiana 
Annual,  and  directed  that  the  name  Louisiana  Reports  should 
hereafter  be  used,  and  that  the  volumes  should  be  numbered  in 
sequence  from  1  Martin.  Volume  52  is  the  last  Annual,  and  Vol. 
104  La.  Reports,  of  1900-1901,  begins  the  new  series.  These  vol- 
umes are  published  whenever  the  opinions  make  900  pages  of 
printed  matter. 

These  annuals  ought  not  to  close  without  a  reference  to 
Thomas  McCabe  Hyman,  late  Clerk  of  the  Supreme  Court.  He 
was  one  of  the  sons  of  the  Chief  Justice  of  1864-68,  and;  from 
early  youth  had  been  attached  to  the  clerk's  office.  He  was  sin- 
gularly gifted  in  the  art  of  conducting  a  public  office.  He  was 
the  trusted  friend  of  court  and  bar,  and  his  sudden  and  unex- 
pected death  touched  a  sympathetic  chord  in  every  precinct  where 
lawyers  gather. 

XL 

I  have  endeavored  to  tell  the  early  history  of  this  court  with 
as  much  detail  as  the  occasion  permitted.  I  have  used  some  dis- 
cretion with  the  central  portion  of  the  story,  and,  for  reasons 
which  are  obvious,  have  condensed  the  concluding  period  to  a 
meager  record.  I  have  not  attempted  to  follow  the  early  or  later 
careers  of  the  judges,  except  where  some  incident  has  thrust  it- 
self across  my  path,  but  I  have  told  sufficient  to  indicate  that 
this  bench  has  been  occupied  by  many  men  whom  the  state  de- 
lighted to  honor,  and  who  have,  as  a  body,  deserved  the  respect 
of  the  historian.  A  more  minute  inspection  might  show  here 
and  there  an  individual  blemish,  but,  considering  that  in  the 
space  of  one  hundred  years  some  sixty-five  judges  have  ad- 
ministered the  law  in  this  place  of  last  resort,  it  is  on  the  whole  a 
pleasing  and  instructive  verdict  that  history  must  record. 


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70  The  Louisiana  Historical  Quarterly 

In  the  early  years  of  our  jurisprudence  the  judges  were  un- 
hampered by  constitutional  and  legislative  restrictions,  and  they 
did  not  find  it  difficult  to  do  exact  justice  by  hewing  a  path  close 
to  conscience,  common  sense,  and  just  reasoning.  For  many  years 
the  tendency  of  legislation  has  been  to  restrict  the  magistrates  by 
hard  and  fast  rules,  but  aside  from  this  there  has  been  so  much 
written  and  said,  so  much  discussed  and  decided,  in  the  courts  of 
the  world  that  there  is  now  little  room  for  original  thinking  and 
not  much  opportunity  to  create  new  precedent. 

Viewing  the  jurisprudence  of  a  hundred  years  with  these 
thoughts  in  mind,  we  are  constrained  to  insist  that  the  judges  of 
today  have  nevertheless  made  an  impression  upon  their  time  as 
vivid  and  as  lasting  as  that  made  by  their  great  predecessors. 

Under  the  text  of  our  Code  the  judge  is  bound  to  proceed  and 
decide  according  to  equity  where  there  is  no  express  law,  and,  to 
decide  equitably,  an  appeal  is  made  to  natural  law  or  received 
usages,  when  positive  law  is  silent.  Under  the  grant  of  power  in 
the  last  Constitution  this  court  is  able  to  reach  usurpation  and  in- 
justice, whether  attempted  by  or  against  the  highest  or  the  low- 
est denizen  of  the  land.  Its  capacity  for  good  is  bounded  only  by 
the  physical  strength  of  its  membership.  Your  right  to  review  the 
facts  is  the  most  precious  possession  of  the  litigant.  There 
has  been  complaint  that  it  is  not  always  possible  to  ac- 
quaint the  entire  bench  with  the  facts  of  each  case  and 
there  have  been  occasions  when  these  fancied  or  real  complaints 
have  been  made  matters  of  public  discussion.  This  court  has  pow- 
er to  minimize  such  complaints,  and  under  Act  70  of  1884,  page 
93,  it  is  believed  that  you  can  establish  any  rule  which  would  tend 
to  a  better  administration  of  justice.  It  is  thought  that  a  printed 
record  would  materially  assist  in  the  study  of  the  facts,  together 
with  a  requirement  that  counsel  should,  in  briefs,  admit  or  con- 
cede undisputed  facts;  or,  better  still,  that  they  should  draw  a 
statement  of  facts  verified  by  the  printed  record.  All  these 
things  might  be  effected  by  a  mere  order  of  the  court,  and  such 
order  would  doubtless  meet  universal  approval. 

The  New  Practice  Act  of  1912  (157,  p.  225)  has  furnished  an 
entering  wedge  which  should  be  driven  home  by  the  appellate 
court. 

The  fundamental  features  of  the  high  court  of  Louisiana, 
wherein  it  differs  in  whole  or  in  part  from  all  other  tribunals. 


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are :  that  it  sits  as  a  court  of  law  and  equity,  exercising  both  func- 
tions in  the  same  case,  under  pleadings  wherein  the  issue  is  re- 
duced to  its  simplest  form.  That  it  is  bound  to  review  the  facts 
in  all  civil  cases  within  its  appellate  jurisdiction.  That  it  may, 
under  such  review,  remand,  affirm,  or  reverse,  or  render  the 
proper  judgment  which  the  facts  and  the  law  or  the  justice  and 
the  right  of  the  case  require.  That  it  may  supervise  and  control 
the  course  of  any  inferior  court  in  any  case  when  justice  re- 
quires its  intervention,  and  as  a  corollary  render  such  judgment 
as  the  circumstances  require.  That,  aside  from  this  control  over 
the  issues  and  the  litigants,  it  is  vested  with  control  over  the  of- 
ficers who  minister  to  justice  at  its  bar. 

With  all  this  vast  power  the  machinery  of  the  court  should 
move  resistlessly  to  the  end  of  complete  justice,  based  upon  a 
thorough  understanding  and  appreciation  of  the  facts  of  the  case. 
Holding  fast  to  the  idea  that  the  right  of  review  upon  the  facts 
must  never  be  yielded,  it  is  the  hope  and  the  prayer  of  all  who 
serve  honestly  and  fearlessly  before  you  that  some  method  may 
soon  be  found  for  presenting  the  issue  in  this  court  in  such  shape 
that  no  man  may  ever  hereafter  be  able  to  say,  "We  have  been 
judged  without  proper  knowledge  of  the  record." 

When  I  was  selected  for  the  task  now  completed  I  said  that 
no  one  man  could  do  the  subject  justice  within  the  time  allotted 
for  its  fulfillment,  and  that  first  impression  I  now  sorrowfully 
confirm.  The  field  of  information  is  uncharted ;  the  records  are 
incomplete;  the  lives  of  the  men  who  have  made  our  jurispru- 
dence are  to  a  large  extent  unwritten;  and  I  am  conscious  that 
my  effort  is  at  best  only  a  mere  scratching  of  the  surface,  but, 
after  having  lived  with  my  task  during  every  moment  that  I  could 
steal  from  other  duties,  I  leave  it  with  the  conviction  that  there 
lies  here  for  some  master  mind  a  gr§at  and  splendid  story  which, 
when  written,  will  light  up  the  history  of  Louisiana  and  confer 
a  laurel  upon  the  historian. 


The  Jurisprudence  of  the  Supreme  Court  of  Louisiana. 

By  Charles  Payne  Fenner,  of  the  New  Orleans  Bar, 
Professor  of  Civil  Law,  Tulane  University 
Law  School. 
We  have  assembled  today,  lawyers  for  the  most  part,  to  cele- 
brate the  centennial  anniversary  of  the  organization  of  the  Su- 


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preme  Court  of  the  state,  the  tribunal  which  for  a  hundred  years, 
except  in  the  comparatively  rare  case  in  which  federal  questions 
have  been  presented,  has  been  the  last  resort  of  its  citizens  in  con- 
troversies involving  their  rights  to  life,  liberty,  property,  and  the 
pursuit  of  happiness. 

It  is  an  impressive  occasion. 

It  would  be  impossible  to  overestimate  the  importance  of  the 
function  in  our  social  and  governmental  system  which  has  been 
discharged  by  this  court,  or  the  debt  of  gratitude  under  which  it 
has  placed  the  people  of  the  state  for  the  manner  in  which  in  the 
main  that  function  has  been  discharged. 

It  is  in  every  way  fitting,  therefore,  that  on  this,  its  cen- 
tennial anniversary,  we,  its  officers,  should  appropriately  com- 
memorate its  services. 

The  occasion  is  naturally  suggestive  of  reminiscences  of  the 
bench  and  bar,  of  the  great  judges  who  have  in  the  past  occu- 
pied the  bench,  and  of  the  great  lawyers  who  in  the  past 
have  striven  mightily  at  this  bar — reminiscences  which  could  not 
fail  to  be  interesting  and  inspiring.  But  these  are  to  be  dealt 
with  by  others,  abler  to  do  so  than  myself. 

I  have  been  asked  to  say  something  in  regard  to  the  juris- 
prudence of  the  court. 

I  confess  that  I  have  been  puzzled  as  to  how  to  deal  ap- 
propriately with  the  subject.  We  lawyers  find  it  difficult  enough, 
heaven  knows,  to  deal  with  the  jurisprudence  of  the  court  on  the 
particular  questions  which  are  presented  to  us  from  day  to  day ; 
and  to  be  called  upon  to  discourse  on  the  general  jurisprudence  of 
a  hundred  years  is  indeed  a  trifle  staggering. 

In  the  difficulty  in  which  I  found  myself  after  I  had  accepted 
this  portentous  call,  it  occurred  to  me  that  perhaps  a  few  observa- 
tions in  relation  to  the  extent  to  which,  as  the  result  of  our  pecu- 
liar system  of  law,  our  jurisprudence  differs  from  that  of  our 
sister  states  would  not  be  deemed  wholly  inappropriate  to  the 
occasion. 

There  is,  I  think,  a  very  general  impression  among  our  com- 
mon-law brethren  that  the  nature  and  extent  of  this  difference 
are  much  greater  than  they  really  are.  Their  attitude  with  regard 
to  our  courts  is  well  illustrated  by  a  remark  attributed  to  one  of 
the  Justices  of  the  Supreme  Court  of  the  United  States  after 
listening  to  an  arjrument  in  a  Louisiana  case.  He  is  said  to  have 


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remarked  to  Judge  White :  "Brother  White,  I  think  you  had  bet- 
ter take  that  case.  I  should  not  like  to  undertake  it.  I  fear  I 
might  be  homologated." 

It  is  true,  of  course,  that  our  terminology  is  in  some  respecta 
very  different  from  that  of  the  common  law,  and  that  upon  many 
important  subjects  our  law  and  jurisprudence  differ  radically 
from  those  of  the  common  law  states.  It  is  true,  nevertheless,  that 
our  jurisprudence  generally  differs  from  that  of  the  common- 
law  states  to  nothing  like  the  extent  that  is  generally  supposed  by 
common-law  lawyers,  and  to  nothing  like  the  extent  that  might 
perhaps  be  a  priori  expected  when  it  is  considered  that  we  have  a 
written  code  of  substantive  law  based  upon  the  civil  as  con- 
tradistinguished from  the  common  law. 

For  despite  this  fact,  it  is  true  that  in  a  very  large  propor- 
tion of  the  cases  decided  by  this  court  the  law  to  be  applied  is 
sought  from  the  same  sources  and  by  the  same  methods  as  are 
resorted  to  in  the  common-law  states  of  the  Union. 

From  the  point  of  view  of  theory,  the  jurisprudence  of  a 
state  in  which  the  whole  body  of  the  substantive  law  has  been 
subjected  to  the  process  of  codification  might  be  expected  to  dif- 
fer radically  in  nature  and  extent  from  that  of  states  in  which 
prevails  the  so-called  unwritten  law. 

One  of  the  chief  purposes  of  codification  is  to  make  the  law 
certain,  and  in  proportion  that  this  purpose  is  accomplished,  it 
might  naturally  be  supposed  that  the  volume  of  litigation  and  of 
jurisprudence  (using  the  latter  term  in  the  sense  of  reported 
judicial  decisions),  would  be  correspondingly  diminished. 

And  so,  too,  whether  in  regard  to  judicial  action  in  the  do- 
main of  the  unwritten  law,  we  agree  with  the  great  apostle  of  codi- 
fication, Jeremy  Bentham,  that  the  judges  really  make  the  law, 
or  with  his  opponents  that  they  simply  declare  it,  it  is  quite  ob- 
vious that  the  function  of  a  court  in  interpreting  and  enforcing 
a  written  statute  differs  very  radically  from  that  performed  by  a 
similar  tribunal  in  ascertaining  and  applying  the  unwritten  law. 

With  all  due  appreciation  of  the  force  of  the  claim  made  by 
the  opponents  of  codification  that  under  the  system  of  unwritten 
law  the  judges  do  not  make  but  simply  ascertain  and  apply  the 
law,  it  is  still  true,  I  think,  that  the  difference  between  the  func- 
tion discharged  by  the  judges  in  the  two  cases  is  very  great,  and 
may,  without  much  inaccuracy,  be  described  as  the  difference  be- 


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tween  declaring  what  the  law  is  and  declaring  what  in  their  opi- 
nion the  law  ought  to  be,  always,  of  course,  in  the  latter  case,  with 
proper  regard  to  established  precedents  and  to  the  rule  of  stare 
•  decisis. 

In  the  one  case,  the  court  is  concerned  simply  with  the  mean- 
ing of  certain  written  words;  in  the  other,  it  is  called  upon,  in 
the  light  of  custom,  reason,  and  precedent  decisions  based  upon 
the  same  considerations,  to  announce  what,  in  its  opinion,  is  the 
rule  of  law  which  ought  to  be  applied  in  the  particular  case  pre- 
sented for  determination. 

Theoretically,  therefore,  it  might  very  naturally  be  supposed 
that  the  body  of  jurisprudence  of  a  state  in  which  the  substantive 
law  has  been  codified  would  differ  very  materially,  both  in  vol- 
ume and  in  kind,  from  that  of  the  states  in  which  thei  substan- 
tive law  is  in  the  main  unwritten,  in  the  sense  that  it  has  the 
not  been  enacted  in  the  form  of  a  statutory  command.  And  where, 
as  in  the  case  we  are  considering,  the  code  of  substantive  law 
in  the  one  state  is  based  upon  the  civil  law  as  contradistinguished 
from  the  common  law  prevailing  in  the  others,  we  might  naturally 
expect  the  difference  in  question  to  be  still  more  radical. 

According  to  the  theory  of  the  advocates  of  codification,  we 
should  expect,  in  the  first  place,  that  as  the  result  of  the  certainty 
attained  through  codification,  the  volume  of  jurisprudence  in  the 
code  state  would  be  very  much  smaller. 

We  should  expect,  in  the  second  place,  to  find  the  jurispru- 
dence of  the  code  state  to  consist  in  the  main  simply  of  codal  in- 
terpretations, or,  as  one  of  the  violent  opponents  of  codification 
express  it,  simply  "in  the  interpretation  of  words." 

It  might  be  expected,  finally,  that  there  would  be  in  every 
branch  of  the  law  fundamental  differences  of  jurisprudence  re- 
flecting the  differences  between  the  civil  and  common  law 
systems. 

Whatever  may  be  true  in  this  regard  in  the  case  of  other 
states  and  countries  which  have  enacted  codes  of  substantive  law 
based  upon  the  civil-law  system,  I  think  it  must  be  admitted  that 
in  Louisiana,  particularly  of  recent  years,  these  differences  are 
much  less  marked  than  might,  from  the  point  of  view  of  the  be- 
lievers in  the  theory  of  codification,  be  a  priori  expected. 

•I  do  not  think,  in  the  first  place,  that  it  can  be  justly  claimed 
that  as  the  result  of  codification,  we  have  attained  a  greater  cer- 


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tainty  in  the  law  which  has  relatively  diminished  the  volume  of 
litigation,  even  as  regards  those  subjects  which  are  specifically 
covered  by  the  Code.  Our  experience  and  that  of  France  in  this 
respect  would  seem  to  justify  the  claim  of  the  opponents  of  codifi- 
cation that  the  limitations  of  human  capacity  for  written  ex- 
pression are  such  as  to  make  the  attainment  of  certainty  in  a 
written  code  of  substantive  law  well-nigh,  impossible. 

In  France,  for  instance,  I  think  the  following  statement  by  an 
eminent  advocate  of  the  theory  of  codification,  Mr.  Sheldon  Amos, 
must  be  admitted  to  be  well  founded.    He  says: 

"It  is  well  known,  for  instance,  that  the  set  of  French  Codes, 
which  in  time  became  the  most  comprehensive  and  self- 
dependent  of  all,  have  been  completely  overridden  by  the  inter- 
pretations of  successive  and  voluminous  conmientators,  as 
well  as  by  the  constantly  accruing  decisions  of  the  Court  of  Cassa- 
tion. In  France,  as  was  intimated  before,  in  treating  of  another 
subject,  there  can  be  no  reliance  in  any  given  case  as  to  whether 
a  judge  will  defer  to  the  authority  of  his  predecessors,  or  will 
rather  recognize  the  current  weight  attached  to  an  eminent  com- 
mentator, or  will  extemporize  an  entirely  novel  view  of  the  law. 
The  greatest  possible  uncertainty  and  vacillation  that  have  ever 
been  charged  against  English  law  are  little  more  than  insigni- 
ficant aberrations  when  compared  with  what  a  French  advocate 
has  to  prepare  himself  for  when  called  upon  to  advise  a  client." 

With  us,  partly,  perhaps,  because  we  have  had  no  commenta- 
tors, but  principally  because  we  have  fully  adopted  the  common 
rule  of  stare  decisis,  the  uncertainties  of  codal  interpretation  have 
not  been  so  niarked.  Speaking  relatively,  however,  I  do  not  think 
it  can  be  justly  claimed  that  our  jurisprudence  exhibits  any  ma- 
terial gain  in  legal  certainty  as  the  result  of  codification. 

It  is  certainly  not  true  either  that  our  jurisprudence  consists 
wholly,  or  indeed  in  the  main,  of  mere  codal  interpretations,  or 
"in  the  interpretation  of  words."  The  most  cursory  examination 
of  our  reports,  particularly  those  of  comparatively  recent  years, 
will  discover  that  in  a  very  large  proportion  of  the  decided  cases 
the  rule  of  law  applied  has  been  deduced  from  the  same  sources 
and  by  exactly  the  same  process  as  would  be  resorted  to  in  a 
similar  case  in  any  common-law  state,  and  there  are  lawyers  in 
this  city  engaged  in  important  branches  of  practice  who  rarely 
have  occasion  to  consult  the  Code. 


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That  this  is  due  in  some  measure  to  the  fact  that  both  our 
judges  and  lawyers  too  frequently  "sin  the  sin"  of  resorting  to 
common-law  authorities  when  the  true  rule  for  decision  might  be 
found  in  the  Code  I  thing  must  be  admitted.  Forming  as  we  do, 
in  effect,  an  integral  part  of  a  much  larger  community  with  the 
other  component  parts  of  which  we  are  united  by  the  strong- 
est ties  of  race,  blood,  and  common  interest,  and  in  all  of  which 
the  common-law  system  prevails,  there  is  naturally  manifested 
in  our  jurisprudence  a  strong  and  ever-present  tendency  to  con- 
form to  common-law  standards.  And  that  this  has  resulted  not 
infrequently  in  unjustified  departures  from  the  letter  of  the  Code 
is  doubtless  true.  It  is  to  this  tendency  which  Mr.  James  C.  Car- 
ter, sometime  leader  of  the  American  bar,  referred,  when  in  one 
of  his  philippics  against  the  theory  of  codification,  he  said  in 
reference  to  Louisiana: 

"The  defects  so  strikingly  characteristic  of  French  jurispru- 
dence would  have  been  repeated  here  (in  Louisiana)  but  for  the 
practical  good  sense  which  has  been  exhibited  by  the  bench  and 
bar  of  that  state.  Largely  imbued  with  the  principles  and  methods 
of  the  English  common  law,  they  have  looked  to  that  body  of 
jurisprudence,  so  far  as  the  Code  permitted  them,  as  containing 
the  real  sources  of  the  law,  and  have  fully  adopted  its  maxim  of 
stare  decisis.  Nothing  is  more  observable  than  the  extent  to 
which  the  English  and  American  reports  and  text-books  are  cited 
as  authoritative  in  that  state.  It  would  seem  that  the  courts,  ex- 
cept where  there  is  some  provision  of  the  Code  directly  in  point, 
and  except  in  those  cases  where  the  civil  law,  which  lies  at  the 
basis  of  the  legal  system  of  Louisiana,  notoriously  differs  from  the 
common  law,  seek  the  rule  in  any  given  case,  in  the  same  quarters 
in  which  it  is  sought  by  us,  and  then  inquire,  if  the  occasion  arises, 
whether  there  is  anything  in  the  Code  inconsistent  with  the  rule 
thus  found." 

The  appeal  here  to  common-law  authorities  is  justified,  more- 
over, in  many  cases,  because  upon  many  subjects,  as  the  result  of 
the  extent  to  which  the  earlier  common-law  judges,  in  the  forma- 
tive period  of  English  jurisprudence,  adopted  the  principles  of  the 
civil  law,  there  are  no  very  material  differences  between  the  two 
systems. 

The  very  liberal  admixture  of  common-law  principles  and 
methods  of  decision  in  our  jurisprudence  is,  I  think,  due,  in  the 


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main,  however,  to  quite  another  cause,  viz.,  that  in  a  very  large 
proportion  of  the  cases  which  are  presented  to  our  courts  our 
Code  furnishes  no  definite  rule  for  decision. 

And  this  must  ever  be  true  with  any  code  of  substantive 
law.  Civilization  has  certainly  not  yet  attained  a  condition  of 
stability  in  which  it  is  possible,  in  the  nature  of  things,  that 
statutory  rules  can  be  enacted  at  any  one  time  to  cover  all  the 
varying  groupings  of  fact  which  may  arise  in  the  future,  and  it 
is  therefore  entirely  impossible  to  wholly  supplant  the  unwritten 
law. 

This  was  not,  indeed,  the  theory  of  Bentham,  the  great  Eng- 
lish apostle  of  condification.  His  theory  was  that  nothing  could 
be  law  except  an  enactment  of  the  Legislature ;  that  the  so-called 
unwritten  law,  or,  as  he  called  it,  "judge-made  law,"  should  be 
wholly  extirpated;  that  it  was  practicable  to  provide  by  statute 
for  every  future  case ;  and  that  if  a  case  should  arise  for  the  deci- 
sion of  which  no  statutory  rule  could  be  found,  it  should  simply 
remain  undecided. 

In  his  celebrated  letter'to  President  Madison,  he  said: 
"Yes,  sir,  so  long  as  there  remains  even  the  smallest  scrap  of 
unwritten  law  unextirpated,  it  suffices  to  taint  with  its  own  cor- 
ruption— its  own  inbred  and  incurable  corruption — ^whatsoever 
portion  of  statute  law  has  ever  been,  or  can  ever  be,  applied  to  it." 
Most  of  his  disciples,  however,  have  abandoned  this  arrogant 
theory  of  their  master.  They  admit  that  it  is  impossible  to  pro- 
vide in  a  code  rules  for  the  decision  of  all  possible  future  cases, 
and  that  when  a  case  does  arise  which  is  not  covered  by  the  Code, 
it  must  nevertheless  be  decided,  and  that  in  such  case  the  un- 
written law  must  be  resorted  to. 

This  was  admitted  by  Mr.  Field,  who  in  his  Introduction  to 
the  Civil  Code,  proposed  by  him  for  adoption  in  New  York,  said : 

"This  Code  is  undoubtedly  the  most  important  and  difficult 
of  all ;  and  of  this  it  is  true  that  it  cannot  provide  for  all  possible 
cases  which  the  future  may  disclose.  It  does  not  profess  to  pro- 
vide for  them.  All  that  it  professes  is  to  give  the  general  rules 
upon  the  subjects  to  which  it  relates  which  are  now  known  and 
recognized." 

And  such  was  the  theory  of  the  codif  iers  of  France  and  Lou- 
isiana. 


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In  France,  article  4  of  the  Code  Napoleon  reads : 
"The  judge  who  shall  refuse  to  decide  a    case    upon    the 
ground  that  the  law  is  silent,  obscure,  or  insufficient  may  be  pro- 
secuted as  guilty  of  a  denial  of  justice." 

That  under  the  terms  of  this  article  it  is  the  duty  of  the 
French  judges,  in  all  cases  presenting  questions  in  regard  to 
which  the  statute  law  is  silent  or  insufficient,  to  decide  the  ques- 
tion nevertheless  in  accordance  with  equity,  reason,  and  custom, 
in  other  words,  to  resort  for  decision  to  the  unwritten  law,  is  well 
settled.  The  article  was  inserted  in  view  of  the  injustice  which 
had  resulted  in  France  prior  to  the  Code  Napoleon  from  the  exer- 
cise by  the  judges  of  the  power  to  refer  such  cases  to  the  legisla- 
tive department  of  the  government  for  solution ;  the  solution  be- 
ing by  way  of  making  a  law  to  fit  the  case.  It  was  admitted  that 
the  exercise  by  the  judges  of  the  function  thus  delegated  to  them 
was  in  a  certain  sense  legislative.  But  as  between  what  seemed 
to  them  two  evils,  that  of  making  the  judge  a  legislator  or  that  of 
making  the  Legislature  a  judge,  the  French  codifiers,  for  ob- 
vious reasons,  chose  the  former  as  the  lesser. 

And  so  with  us  it  is  expressly  pi'ovided  by  article  21  of  the 
Code: 

"In  all  civil  matters,  where  there  is  no  express  law,  the 
judge  is  bound  to  proceed  and  decide  according  to  equity.  To 
decide  equitably,  an  appeal  is  to  be  made  to  natural  law  and 
reason  or  received  usages,  where  positive  law  is  silent." 

It  is  clear  that  here  is  a  recognition  of  the  unwritten  law  in 
the  broadest  sense,  with  a  designation  of  the  sources  from  which 
it  is  to  be  derived  that  are  identical  with  those  to  which  common- 
law  judges  have  resorted  from  the  beginning.  And  when  it  is 
remembered  that  our  Code  was  framed  nearly  a  hundred  years 
ago,  and  that  there  has  probably  never  been  a  period  in  which  the 
novelty  of  the  conjunctures  challenging  judicial  inquiry  has  been 
greater  than  during  the  period  since  that  time,  it  ought  not  to  be 
a  matter  of  surprise  that  a  very  large  proportion  of  our  juris- 
prudence has  consisted  in  the  declaration  and  application  of  the 
unwritten  law. 

And  when  we  consider  further  the  inevitable  tendency  to- 
ward uniformity  of  custom,  and  therefore  of  law  and  jurispru- 
dence, which  always  obtains  among  people  united  as  are  the  peo- 


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pie  of  this  state  with  those  of  her  sister  states,  it  should  be  still 
less  a  matter  of  surprise  that  our  judges,  in  seeking  to  decide  ac- 
cording to  equity,  reason,  and  received  usages,  should  have  re- 
sorted in  the  main  to  the  majestic  fabric  of  common-law  juris- 
prudence rather  than  to  the  comparatively  unfamiliar  and  inac- 
cessible authorities  of  the  civil  law. 

And  so  it  has  resulted,  as  might  have  been  expected  by  any 
student  of  the  forces  which  always  and  inexorably  shape  the  law 
and  jurisprudence  of  any  free  people,  that  despite  the  fact  that  a 
hundred  years  ago  we  adopted  a  code  of  substantive  law  based 
upon  the  civil,  as  contradistinguished  from  the  common  law,  our 
jurisprudence  ig  to  a  very  large  extent  based,  and  confesi^edly 
based,  upon  the  common  law. 

I  trust  that  nothing  that  I  have  said  will  be  construed  as  an 
attack  upon  the  theory  of  codification,  or  as  indicating  any  gen- 
eral dissatisfaction  with  the  practical  results  of  the  application 
of  that  theory  in  Louisiana.  My  purpose  has  been  simply  to  in- 
dicate some  of  the  limitations  of  the  theory  as  discovered  in  the 
jurisprudence  of  the  state.  I  have  not  intended  to  discuss  or  to 
express  any  opinion  upon  the  general  expediency  of  the  codifi- 
cation of  private  substantive  law.  And  by  private  substantive 
law,  I  mean  the  law  regulating  the  conduct  of  men  in  their  rela- 
tions with  each  other  as  individuals,  as  contradistinguished  from 
the  law  regulating  their  conduct  in  relation  to  society  or  govern- 
ment, which  may  be  termed.  "Public  Law.** 

As  a  result  of  the  scant  study  I  have  been  able  to  give  the 
subject,  my  impression  is  that  the  expediency  of  such  codification 
depends  upon  the  conditions  existing  in  the  state  or  country  in 
which  it  is  proposed,  and  that  no  general  rule  can  be  safely  an- 
nounced on  the  subject.  For  Louisiana,  in  view  of  the  conditions 
which  existed  at  the  time  she  was  admitted  into  the  Union,  I  am 
quite  convinced  that  codification  was  necessary.  If  I  lived  in  a 
common-law  state  of  this  Unioft,  I  think  I  should  be  opposed  to 
it.  The  question  is,  however,  too  big  for  any  one  to  venture  a 
definite  judgment  upon  it  without  special  study,  and  certainly  en- 
tirely too  big  to  be  treated  incidentally. 

I  should  also  be  very  much  concerned  if  I  thought  any  one 
was  likely  to  construe  anything  I  have  said  today  as  indicating  a 
lack  of  appreciation  of  the  civil  law,  or  a  preference  for  the  com- 
mon law  as  a  system  of  jurisprudence.    This  is  a  question  entire- 


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ly  distinct  from  the  question  of  codification.  The  civil  or  Roman 
law  had  been  developed  by  the  great  Roman  jurisconsults  into  the 
most  scientific  and  consistent  system  of  unwritten  law  that  the 
world  has  yet  seen ;  four  centuries  before  the  Corpus  Juris  Civilis 
was  promulgated,  and  the  Pandects,  or  Digest,  of  Justinian,  the 
one  of  the  three  works  constituting  the  Corpus  Juris  that  covered 
the  field  of  private  law,  was  really  not  a  code  in  the  modem 
sense  of  that  term.  It  was  an  abridgment  of  the  treatises  of  the 
great  jurisconsults  of  a  former  age  of  Roman  jurisprudence, 
which  during  that  age  were  authoritative  in  much  the  same  sense 
that  judicial  opinions  are  authoritative  under  the  common-law 
system.  For  several  centuries  prior  to  the  accession  of  Justinian 
the  jurisprudence  of  Rome  had  sadly  degenerated.  As  noted  by 
Gibbon,  her  great  jurisconsults  had  been  supplanted  "by  an 
ignoble  multitude  of  Syrians,  Greeks,  and  Africans,  who  flocked 
to  the  imperial  court  to  study  Latin  as  a  foreign  tongue  and  juris- 
prudence as  a  lucrative  profession."  In  so  far  as  private  law  is 
concerned,  the  work  performed  under  Justinian  was,  as  above 
stated,  the  confection  of  an  abridgment  or  digest  of  the  treatises 
of  the  earlier  Roman  jurisconsults,  which  when  completed  was 
declared  to  be  authoritative  law.  It  resembled  a  code  in  much  the 
same  sense  as  would  an  abridgment  or  digest  of  certain  selected 
decisions  of  common-law  courts  which  might  be  declared  by  sta- 
tute in  a  common-law  state  to  be  the  only  decisions  entitled  to 
force  and  effect  as  authoritative  law.  It  did  not  change  the  sys- 
tem of  Roman  jurisprudence  as  essentially  a  system  of  unwritten 
law. 

The  truth  would  seem  to  be,  as  claimed  by  Mr.  Carter  in  his 
work,  "Law,  Its  Origin,  Growth  and  Function,"  that  the  earliest 
code  of  substantive  law,  in  the  modem  sense  of  the  word  "code," 
was  that  adopted  in  Prussia  in  1751. 

As,  of  course,  is  well  known,  the  Corpus  Juris  Civilis  was 
completely  submerged  and  lost  to  view  -during  the  Dark  Ages. 
From  the  time  when  it  was  afterwards  discovered,  the  Pandects 
or  Digest,  being  that  portion  of  the  work  which  covered  the  field 
of  private  law,  has  exerted  an  influence  upon  the  law  and  juris- 
prudence of  all  civilized  countries,  not  excepting  England,  which 
has  justified  the  fine  phrase:  "Rome  rules  us  still,  not  by  reason 
of  her  power,  but  by  the  power  of  reason." 


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Centenary  of  The  Supreme  Court  81 

The  Louisiana  Bar,  1813-1913. 

By  Judge  T.  C.  W.  Ellis,  Senior  Judge  of  the 
Civil  District  Court. 

May  it  please  your  Honors,  Ladies  and  Gentlemen :  We  are 
here  in  this  home  of  the  Supreme  Court  of  Louisiana  at  the  in- 
vitation of  its  judges,  in  honor  of  the  one  hundredth  anniver- 
sary of  its  organization. 

The  presence  of  the  learned  justices,  and  their  invited  guests, 
the  judges  of  the  various  state  courts,  the  Governor  of  the  state, 
members  of  the  General  Assembly,  and  the  heads  of  the  several 
administrative  departments,  signalizes  the  gathering  of  all,  who 
represent  in  behalf  of  the  people  the  sovereign  powers  of  our 
state. 

We  have,  also,  presiding  with  our  Justices,  the  judges  of  the 
federal  courts,  for  this  judicial  circuit  and  district,  who  have,  for 
the  day,  laid  aside  their  labors  to  join  in  this  celebration. 

Distinguished  members  of  the  reverend  clergy  are  also  with 
us,  to  lend  the  recognition  of  our  holy  religion,  and  to  pronounce 
its  prayers  and  benedictions. 

The  lawyers  of  our  state,  with  the  president  of  the  Louisiana 
Bar  Association  as  master  of  ceremonies,  are  here  in  large  num- 
bers, as  also  are  the  mayor  of  our  city,  and  other  representatives 
of  its  municipal  government,  together  with  very  many  of  our 
fellow  citizens. 

And  last,  but  best  of  all,  have  come  many  representatives  of 
the  splendid  womanhood  of  our  state,  to  add  the  witchery  of  their 
charming  presence,  in  sympathetic  accord  with  the  purposes  of 
this  impressive  occasion. 

They  are  thrice  welcome  here,  as  they  join  us  all  in  our  salu- 
tations to  this  august  tribunal,  and  in  our  invocation,  that  God 
may  ever  "bless  the  state  of  Louisiana,  and  this  honorable  court." 

The  first  thought  pressing  for  utterance  is  that  of  reverent 
gratitude  to  the  Great  Author  of  our  being — ^the  King  of  Kings, 
the  Judge  of  Judges — that  our  lives  have  been  prolonged  to  see 
this  auspicious  day,  and  that,  through  all  the  vicissitudes  of  100 
years  of  her  checkered,  and  sometimes  stormriven,  career,  He 
has  vouchsafed  to  our  state  existence  as  a  sovereign  among  the 
sovereigns  composing  the  Federal  Union,  and  to  her  people  the 
blessings  of  enlightened  government  and  of  civil  and  religious 
liberty. 


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The  second  is  one  of  gratification  that  this  tribunal  has 
given  the  wholesome  example  that  respect  should  be  cherished  for 
the  memory  of  those  who  have  wrought  well  in  their  day,  in  the 
formation  and  preservation  of  this  fabric  of  beneficent  govern- 
ment, with  just  pride  for  achievements,  that  go  to  make  up  the 
glory  of  the  state. 

It  has  been  said,  that  a  people  without  patriotic  sentiment  is 
ripe  for  the  despot's  rod. 

With  glad  hearts  we  all  join  in  the  celebration  of  this  im- 
pressive anniversary. 

Distinguished  lawyers  have  given  us,  in  eloquent  terms,  the 
story  of  this  historic  court,  and  of  the  jurisprudence  it  has  been 
upbuilding  in  the  last  100  years. 

The  request  that  brings  me  here  suggested  that,  as  an  older 
member  of  the  state  judiciary,  I  should,  in  behalf  of  that  depart- 
ment, voice  its  appreciation  of  the  lawyers  composing  the  Louisi- 
ana bar  of  the  past  century.  The  kind  terms  in  which  this  re- 
quest was  communicated  will  be  a  pleasing  memory  with  me 
while  life  shall  last. 

My  theme,  therefore,  is  the  Louisiana  Bar. 

As  introductory  to  any  notice  of  the  bar,  as  a  body  of  lawyers, 
it  will  be  useful  to  consider  the  qualifications  necessary  to  entitle 
the  individual  to  admission  to  its  membership.  The  first  requisite 
is  that  he  be  a  citizen  of  the  state,  of  sufficient  residence  to  make 
him  known  to  the  community  where  he  lives,  and  that  he  must  be 
a  person  of  good  moral  character.  Beyond  this,  he  must  establish 
that  he  has  spent  the  prescribed  time  in  the  study  of  the  law  in 
its  various  branches,  as  laid  down  by  statute,  or  by  the  rules  of 
the  Supreme  Court,  and  he  must  prove,  by  the  test  of  an  examina- 
tion before  a  committee  of  lawyers  selected  for  the  purpose,  and 
a  final  examination  before  the  court  which  has  power  to  grant 
or  deny  the  license,  that  he  has  the  mental  aptitude  and  has  ac- 
quired the  legal  learning  necessary  to  equip  him  for  his  duties 
as  a  lawyer. 

And,  last  of  all,  he  must  take  a  solemn  oath,  not  only  to  sup- 
port the  Constitution  and  laws  of  the  United  States  and  of  the 
state,  but,  also,  that  in  his  practice  he  will  demean  himself  honest- 
ly and  with  fidelity  to  every  duty  and  trust  with  which  he  may 
be  charged. 


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All  this  accomplished,  he  becomes  a  member  of  the  bar,  and 
as  such  an  officer  of  the  court,  with  all  the  privileges  this  relation 
implies,  but  subject  to  disbarment  for  misconduct  or  willful 
breach  of  the  duties  that  devolve  upon  him  as  a  lawyer. 

To  his  client,  he  owes,  and  is  held,  to  the  highest  standard 
of  fidelity.  It  is  his  duty  to  give  to  the  advocacy  or  defense  of  his 
client's  cause  his  best  endeavors  within  the  limitations  of  personal 
and  professional  propriety.  He  is  barred  from  disclossing  the 
admissions  or  confessions  of  his  client,  given  to  him  under  the  veil 
of  his  employment,  and  under  no  circumstances  can  he  acquire 
interest  antagonistic  to  those  of  his  client  in  the  subject-matter 
wherein  he  is  engaged. 

In  all  his  relations  as  a  practitioner  his  position  is  one  of 
high  privilege  and  exalted  trust. 

.  Considering  the  bar  as  a  body  of  lawyers  thus  tested  and 
licensed,  it  may  be  the  more  readily  understood  why  its  influence, 
from  the  organization  of  our  state  to  the  present  time,  has  been  so 
great. 

It  cannot  be  denied  that  it  has  impressed  itself  on  every  page 
of  the  history  of  our  state.  In  every  lawmaking  body,  it  has  been 
a  factor,  often  originating  and  invariably  assisting  in  shaping  the 
statutory  declarations  of  what  shall  be  the  law.  On  every  judicial 
bench  it  furnishes  from  its  ranks  an  arbiter,  hearing,  considering, 
and  deciding,  and  thus  aiding  in  the  upbuilding  of  the  jurispru- 
dence so  necessary  to  the  construction  and  successful  operation 
of  the  statute  law. 

All  this  takes  no  notice  of  the  fact  that  in  his  practice  the 
lawyer  has  been  the  counselor  and  teacher  of  the  people  in  their 
individual  interests  and  concerns,  as  well  as  the  adviser  of  all  the 
departments  of  the  government,  state  and  general  as  well  as  local. 
It  must  be  so  from  the  very  nature  of  the  structure  of  our  political 
system  and  our  social  fabric,  as  institutions  regulated  by  law ;  for 
how  can  law  regulate,  unless  its  application  and  operation  be 
directed  by  those  who  understand  it  as  a  science. 

All  is  not  claimed  in  this  respect  for  the  bar  as  a  body  of 
lawyers.  There  have  been  very  many,  from  the  other  walks  of 
life,  who  have  exerted  powerful  influence  in  the  conduct  of  our 
affairs  as  a  people,  but,  as  this  political  structure,  the  result  of 
100  years  of  progressive  activity  and  evolution,  towers  in  our 
presence  today,  we  cannot  forget  that  its  strength  and  fair  pro- 


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portions  could  not  have  been  attained  without  the  active  and  con- 
trolling participation  of  the  membership  of  the  Louisiana  bar,  as 
legislators,  as  administrative  officers,  as  lawyers  and  judges,  as 
well  as  citizens. 

In  illustration  of  what  we  claim  for  the  bar,  in  the  founda- 
tion and  up-building  of  our  state,  let  us  particularize.  The  task 
that  confronted  the  lawyers  of  this  state  at  the  opening  of  the  cen- 
tury, which  closes  this  day,  was  one  unusual  difficulty.  The  ter- 
ritory comprising  the  state  had  been  the  colonial  possession,  first 
of  France,  then  of  Spain.  Proconsular  government  had  in  turn 
directed  the  affairs  of  the  French  and  Spanish  subjects,  who,  in- 
duced by  royal  grants,  or  special  privileges,  or  by  the  hope  of 
wealth,  or  the  love  of  adventure,  had  settled  here  and  formed  its 
population.  By  charter  direction  the  laws  and  ordinances  of 
France  and  the  customs  of  Paris  had  been  ordained  and  applied 
during  the  French  occupation.  When  Spanish  rule  supervened, 
the  laws  of  Castile  prescribed  regulations  for  matters  of  ordinary 
civil  nature,  and  prescribed  the  form  of  practice  for  judicial  pro- 
cedure. Later  on  the  strong  hand  of  O'Reilly  seemed  to  have 
swept  all  else  from  the  system,  and  to  have  ingrafted  the  laws  of 
Spain  as  the  law  of  the  land.  Whether  this  was  the  effect  of  the 
official  action  of  this  self-willed  Spanish  Governor  or  not,  such 
was  believed  to  have  been  the  result.  In  the  matter  of  criminal 
procedure — ^the  arrest,  accusation,  trial  and  punishment  for  al- 
leged crime— there  was  slight  protection  for  the  accused  if  con- 
stituted power  was  intent  upon  conviction  and  punishment. 

Nothing  could  be  more  different  than  were  the  regulations 
prescribed  by  kingly  power,  or  its  proconsular  representatives,  for 
the  government  of  the  people  of  Louisiana,  as  a  French,  or  Span- 
ish province,  from  the  American  plan,  whose  life  and  spirit  were 
the  guaranties  of  Magna  Charta  and  the  common  law,  and  the 
democratic  theory  of  government  by  the  people  and  for  the  peo- 
ple. 

After  the  purchase  of  the  territory  by  the  United  States, 
during  the  administration  of  Mr.  Jefferson,  the  Congress  had 
framed  for  it  a  territorial  government.  The  legislation  thus  or- 
ganizing the  territory  of  Orleans  had  vouchsafed  to  this  people 
the  guaranties  of  the  English  and  American  Bill  of  Rights,  the 
trial  by  jury,  the  immunity  from  inquisitorial  methods  of  ac- 


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cusation  and  prosecution,  exemption  from  cruel  and   unusual 
punishments,  etc. 

In  the  domain  of  federal  jurisdiction  and  control  these  guar- 
anties of  the  Great  Charter,  embodied  in  the  Constitution,  had  al- 
ready become  the  heritage  of  the  people,  and  the  territorial  fed- 
eral courts  were  the  present  and  effective  agencies  for  their 
application  and  enforcement. 

In  aid  of  the  plan  of  transforming  this  king-governed  terri- 
tory into  a  state  of  the  American  Union  its  Legislature,  elect- 
ed by  its  people,  had  caused  to  be  framed  the  Civil  Code  of  1808, 
modeled,  for  the  great  part,  on  the  Napoleon  Code,  and  purport- 
ing to  be  a  compilation  of  laws  in  force  in  the  territory,  with  al- 
terations to  suit  the  conditions  arising  from  the  change  of  gov- 
ernment, but  it  left  in  force  all  laws,  except  so  far  as  they  might 
conflict  with  its  provisions.  With  the  settlement  of  questions 
arising  under  this  state  of  affairs  the  ultimate  determination  was 
left  to  the  Superior  Court  of  the  territory  presided  over  by  George 
Mathews,  of  Georgia,  Joshua  Lewis,  of  Kentucky,  and  Francois- 
Xavier  Martin,  of  North  Carolina,  appointed,  respectively,  by 
Presidents  Jefferson  and  Madison,  and  their  work  is  to  be  found 
in  the  first  and  second  volumes  of  Martin's  Reports. 

Later  on  came  the  enabling  act  of  Congress,  authorizing  the 
people  of  the  territory  of  Orleans  to  frame  a  state  Constitution, 
preparatory  to  their  admission  as  a  state.  In  the  convention, 
elected  by  the  people  for  this  purpose,  the  Constitution  of  1812 
was  framed,  and,  after  submission,  was  approved  by  Congress, 
which  enacted  the  legislation  admitting  the  territory  into  the 
Federal  Union,  as  the  state  of  Louisiana. 

In  the  framing  of  this  Constitution  the  lawyers  of  that 
period  exercised  a  controlling  influence.  Their  task  seems  to 
have  had  less  of  difficulty  than  that  falling  to  their  successors  in 
1845,  1852,  1879,  and  1898,  perhaps  because  there  was  then  less^ 
distrust  of  the  agencies  of  the  government,  particularly  the* 
legislative  branch,  and  doubtless  because  there  were  then  no  dis- 
tracting issues  of  state  policy,  such  as  have  grown  up,  necessarily, 
with  the  marvelous  developments  of  later  times. 

Fresh  in  the  minds  of  the  f ramers  of  this,  our  first  Consti- 
tution, were  the  discussions  as  to  the  outlines  and  checks  of  or- 
ganic law  requisite  for  the  formation  of  a  more  perfect  union,  in 
*he  Convention  of  1787,  and  in  the  battle  royal  waged  at  the  hust- 


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ings,  and  in  the  several  state  conventions,  over  the  issue  of  adop- 
tion of  the  federal  Constitution. 

The  result  was  that  the  state  Constitution,  projected  on  the 
plan  of  the  federal  instrument,  with  its  seven  articles  and  sched- 
ule, was  readily  adopted  as  the  framework  upon  which  the  three 
co-ordinate  departments  of  the  new  state  government  were  to 
find  their  rock-bed  basis. 

It  is  a  tribute  to  the  wisdom  of  this  plan  of  our  fathers  that 
the  state  government  was  easily  organized,  its  completion  being 
signalized  by  the  organization  of  the  Supreme  Court,  one  century 
ago  today,  and  that  it  operated  for  33  years,  or  nearly  one-half  as 
long  as  the  combined  lives  of  the  six  successive  Constitutions  that 
have  since  been  adopted. 

For  12  years,  the  Supreme  and  inferior  courts  of  the  state, 
and  the  lawyers  of  that  period,  were  called  to  deal  with  issues 
arising  from  the  variant  systems  of  laws  which  have  been  re- 
ferred to. 

•  In  1825  a  Revision  of  the  Code  of  1808,  under  legislative 
authority,  was  prepared  and  presented  by  those  eminent  lawyers, 
Moreau-Lislet,  Pierre  Derbigny,  and  Edward  Livingston.  It  was 
adopted  by  the  Legislature,  and  became  the  law. 

Soon  after,  the  General  Assembly,  expressing  the  weariness 
of  the  people  from  the  operation  of  laws  existing  in  the  colonial 
days,  which  brought  conflict  and  uncertainty,  undertook  to  cut  the 
Gordian  knot  of  difficulty,  resulting  from  prior  conflicting  laws, 
not  abrogated  by  the  Code  of  1825,  by  the  repeal  of  all  laws  in 
force  anterior  to  its  provisions. 

Then  came  to  Louisiana  lawyers  cases  of  rights  acquired,  or 
liability  incurred,  under  laws  existing  prior  to  1825,  and  on  their 
hearing  the  Supreme  Court  held  that  it  was  not  the  legislative 
intent  to  abrogate  those  principles,  which  were  founded  on  the 
Roman  law  and  the  civil  law  of  France  and  Spain,  under  which 
'legal  rights,  recognized  by  the  jurisprudence,  had  been  acquired. 

It  was  the  jurisprudence  thus  formed  and  announced  that 
breathed  into  the  provisions  of  our  Civil  Code,  itself  framed  on 
the  model  of  the  Napoleon  Code,  the  life  and  spirit  of  the  civil 
law,  and  opened  up,  as  sources  for  its  explanation  and  elucidation, 
the  jurisprudence  of  France  and  the  commentaries  of  her  juris- 
consults, as  well  as  the  wealth  of  the  Roman  law  and  its  exposition 
wherever  it  had  prevailed. 


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It  is  to  controversies,  growing  out  of  conflicting  laws  and 
regulations  imposed  upon  the  people  and  property  of  Louisiana 
when,  in  its  chrysalis  form,  its  territory  was  the  pawn  and  sport 
of  kings,  passing  from  one  domination  to  another,  until  it  found 
its  safe  moorings,  as  a  state  of  the  American  Union,  beneath  the 
aegis  of  the  Constitution,  that  we  turn,  for  the  most  splendid 
triumphs  of  the  Louisiana  lawyer,  and  to  the  golden  age  of  judi- 
cial achievement.  It  was  in  controversies  thus  arising  that  the 
intellect  and  industry  of  the  Louisiana  advocate  met  the  f  oeman 
worthy  of  his  steel,  in  his  opposing  professional  brother,  and  that 
from  their  forensic  discussions,  just  as  the  electric  spark  leaps 
from  the  contact  of  opposing  currents,  the  truth  came,  fixing  the 
principle  and  its  application  in  the  judicial  pronouncements  that 
gave  to  the  bar  and  to  the  Supreme  Court  of  Louisiana  the  high- 
est respect  and  position  throughout  the  world. 

There  were  very  many  questions  of  law  arising  in  that  period 
from  the  peculiar  conditions  then  existing.  Questions  arising 
from  land  grants,  questions  as  to  batture  and  riparian  rights 
growing  out  of  title,  or  possession,  of  lands,  bordering  our  great 
river,  enlisted  the  skill  and  learning  of  our  greatest  lawyers,  and 
resulted  in  the  announcement  of  fixed  rules,  by  the  Supreme 
Court,  to  govern  all  such  cases. 

But  it  was  in  controversies  where  the  laws  of  different  coun- 
tries were  to  be  considered  and  applied  that  the  genius  and  learn- 
ing of  the  Louisiana  bar  and  the  wisdom  of  our  Supreme  Court 
signalized  and  recorded  their  greatest  and  most  far-reaching 
achievements. 

Cases  of  this  nature,  in  variant  forms,  brought  under  con- 
sideration the  operation  of  the  lex  domicilii,  the  lex  loci  con- 
tractus, the  lex  rei  sitae,  the  lex  fori,  and  from  them  rules  regulat- 
ing what  was  then  called  the  conflict  of  laws,  but  now  known  as 
the  science  of  private  international  law,  were  simplified,  and 
became  well-recognized  rules  of  personal  privilege  and  property 
right. 

Cases  decided  along  those  lines  in  the  Supreme  Court  of 
Louisiana  were  cited  and  accepted  as  authoritative  by  the  Su- 
preme Court  of  the  United  States,  and  these  settled  rules  were 
embodied  in  Mr.  Justice  Story's  treatise  on  the  Conflict  of  Laws, 
the  pioneer  work  on  this  subject  in  the  United  States,  and  have 
held  their  position,  as  controlling  precedents,  in  succeeding  juris- 


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prudence,  and  in  all  of  the  works  upon  this  once  perplexing  sub- 
ject. 

Martin,  Porter,  and  Mathews,  and  their  successors  upon  this 
bench,  great  as  they  were,  would  have  been  embarrassed  by  these 
questions,  without  the  treasures  of  reason  and  authority  and  re- 
search which  were  brought  to  their  assistance  by  the  bar  of  that 
time.  The  lawyers  of  that  day  were  as  the  voice  of  "one  crying  in 
the  wilderness,"  preparing  the  way  and  making  straight  the  path 
through  which  was  to  lead  the  evangel  of  a  consistent  and  settled 
jurisprudence  in  its  progress,  as  the  measure  of  justice  and  right 
for  all  the  people. 

It  is  not  that  those  lawyers,  or  those  judges,  were  greater 
intellectually,  or  in  their  learning  and  acquirements,  than  their 
illustrious  successors  at  the  bar,  or  on  the  bench.  It  was  theirs 
to  live  and  serve  when  those  great  questions  arose;  it  was  their 
opportunity  and  their  privilege  to  live  and  to  act  at  that  formative 
period  of  our  history. 

It  is  the  record  of  all  human  annals  that  every  crucial  occa- 
sion has  evolved  men  of  endowment  and  courage  to  meet  its  issues 
and  necessities,  and  in  God's  providence  it  fell  to  the  lot  of  the 
first  judges  of  this  tribunal,  and  to  the  eminent  lawyers  who  then 
occupied  the  stage  of  human  activity  here,  to  confront  and  to 
settle  the  important  questions  which  then  arose. 

It  was  thus,  when  our  federal  system  was  crumbling  under 
the  disintegrating  influences  that  had  proved  the  inefficiency  of 
the  government,  under  the  Articles  of  Confederation — when  Els- 
worth  had  resigned,  and  John  Jay,  his  successor,  refusing  to 
continue  as  Chief  Justice  of  the  Federal  Supreme  Court,  had  ex- 
pressed his  belief  that  the  system  was  a  failure,  and  that  the  "one 
Supreme  Court"  was  a  tribunal,  without  power  for  usefulness — 
that  John  Marshall  became  Chief  Justice,  and  soon,  under  the  ope- 
ration of  his  masterful  mind,  the  government  of  the  United  States 
began  to  fulfill  and  carry  into  execution  the  designs  of  its  found- 
ers. It  was  to  him  that  opportunity  fell  to  provide,  by  liberal  and 
beneficial  construction  and  interpretation,  for  the  enforcement  of 
the  delegated  powers  of  the  general  government,  and  to  make 
them  efficient  agencies  for  the  general  welfare.  As  has  been  said 
by  another,  it  was  his  to  take  the  Constitution,  which  he  found 
"paper,"  and  to  transform  it  into  "power."  It  was  his  to  take  its 
skeleton  framework,  and  by  his  plastic  hand  to  clothe  it  with  flesh 


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and  muscle,  to  infuse  into  it  the  rich  blood  of  health,  and  to 
breathe  into  its  nostrils  the  breath  of  life.         - 

And  so  it  was,  when  the  admiralty  jurisdiction,  hedged  in  by 
the  narrow  restrictions  that  confined  it  to  the  high  seas  and  to 
the  ebb  and  flow  of  the  ocean  tides,  had  become  inefficient,  that 
Chief  Justice .  Taney  brushed  away  those  restrictions,  and  by 
philosophic  reasoning  and  luminous  interpretation  that  carried 
conviction  extended  that  jurisdiction,  so  necessary  to  the  peo- 
ple, as  well  as  to  the  government,  to  the  great  lakes  and  inland 
streams,  making  "navigable  waters"  the  test,  instead  of  the  "in- 
land flow  of  the  tides." 

And  so,  it  was  the  opportunity  of  the  great  lawyers  who  com- 
posed the  bench  and  bar  of  Louisiana  to  meet  the  conditions  that 
arose,  in  the  early  days  of  our  state,  from  conflicting  laws  and 
systems,  that  had  controlled  when  she  was  a  Spanish  or  French 
province,  or  a  territory  of  the  United  States,  and  to  mold  and 
shape  the  legislation  and  jurisprudence  which  should,  with  safety 
to  the  privileges  and  rights  of  all  its  people,  transform  them,  as  a 
community,  into  a  state  of  the  American  Union. 

Royal  edicts,  charter  grants,  kingly  prerogative,  laws  of 
Spain  and  laws  of  France,  were  all  to  be  considered,  as  to  their 
operation  upon  the  rights  and  privileges  of  the  people,  and  were 
to  be  reconciled,  so  as  to  bring  them  into  harmonious  relations 
with  the  liberal  institutions  and  beneficent  form  of  government 
ordained  in  the  Constitution  for  the  regulation  of  the  states  com- 
posing the  Federal  Union. 

That  they  met  these  problems  and  solved  them  in  the  interest 
of  the  state  and  of  all  her  people  is  the  finding  of  impartial  his- 
tory, and  is  the  proudest  record  of  the  Louisiana  bench  and  bar. 

From  this  day,  looking  back  to  the  lawyers  and  judges  of 
that  pioneer  period  in  our  history,  the  eminence  they  occupy  in 
.the  world's  annals  of  judicature  and  politics  seems  crowned  with 
the  glory  of  a  sunlight  that  brightens  as  the  years  pass  away. 

Tradition  has  handed  down  much  of  interest  regarding  these 
great  men  as  individuals,  but  my  theme  does  not  lead  me  there, 
but  rather  confines  me  to  the  Louisiana  bar  as  exemplified  by  its 
record  of  public  service. 

Soon  after  the  admission  of  the  state,  the  Louisiana  lawyer 
came  into  prominence  as  a  political  factor.  In  the  state,  as 
throughout  the  Union,  alignments  had  been  formed  between  the 


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federalist,  or  whig  idea,  on  the  one  hand,  and  the  democratic 
theory,  on  the  other.  The  former  favored  the  latitudinous  con- 
struction of  the  Constitution,  in  the  enlargement  of  the  powers 
delegated  to  the  general  government.  The  latter  stood  for  the 
strictest  interpretation,  and  denied  all  power  beyond  the  express 
terms  of  the  mandate. 

The  currency,  the  national  bank,  the  tariff,  the  public  domain, 
and  many  questions  came  on  for  discussion ;  fortunately  economic 
issues  that  admitted  of  peaceful  solution.  But  then  came  burn- 
ing questions  growing  out  of  the  institution  of  domestic  slavery, 
intensified  by  the  admission  of  Missouri  and  Texas  as  states,  and 
later  by  the  issues  that  arose  from  the  Missouri  Compromise,  by 
the  acts  for  the  admission  of  Kansas  and  Nebraska — ^the  one 
party  demanding  that  slavery  should  be  excluded  from  the  ter- 
ritories, and  the  other  claiming  the  right  of  slaveowner  to  settle 
in  the  territories,  the  common  property  of  all  the  states,  with  his 
slave  property,  subject  to  expulsion,  if  the  territory,  when  erected 
into  a  state,  should  declare  against  domestic  slavery.  The  deci- 
sion of  the  Supreme  Court  in  the  Dred  Scott  Case,  deciding  the 
Missouri  Compromise  repugnant  to  the  Constitution,  and  that  the 
colored  man  was  not  a  citizen  of  the  United  States  in  the  jurisdic- 
tional sense,  intensified  the  issue,  and  added  to  the  flames  that 
burned,  until  extinguished  by  the  Civil  War. 

Events  crowded,  and  the  dread  issue  of  secession  came  on; 
the  Civil  War,  the  defeat  of  the  South,  the  military  occupation, 
the  chaos  that  came  during  the  days  of  alien  and  negro  domina- 
tion, the  steady  resistance  of  a  people  who,  though  conquered  in 
war,  refused  to  yield  to  the  rule  of  an  inferior  race. 

It  is  not  a  grateful  nor  pleasant  task  to  revive  those  sad 
memories  of  the  long-ago,  and  I  turn  from  them.  I  only  recall 
them  to  say  that,  throughout  them  all,  two  generations  of  Louisi- 
ana lawyers  took  active  part  on  the  one  side  and  on  the  other  in 
all  the  discussions,  as  well  as  in  all  the  events,  that  make  up  that 
dark  period  in  our  history. 

In  all  of  these  troubles  the  Louisiana  lawyer  was  not  a  lag- 
gard. In  the  closing  scenes,  especially  in  all  the  measures  of 
resistance  to  the  misrule  and  oppression  that  followed  the  Civil 
War,  whether  at  law  or  otherwise,  almost  unanimously,  whether 
they  had  sided  with  the  Confederacy,  or  with  the  Union,  they 
were  on  the  side  of  the  rights  of  the  state  and  the  people,  and 


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during  the  last  10  years  of  resistance,  with  many  of  them  as  lead- 
ers, the  struggle  went  on,  until,  in  April,  1877,  when,  under  the 
leadership  of  him  who  was  twice  the  deliverer  of  this  state,  him 
who,  with  maimed  limbs  and  wasted  body,  was  twice  the  Governor 
of  the  state,  and  long  the  Chief  Justice  of  this  tribunal,  ended  our 
enthrallment  as  a  people,  and  came  the  restoration  of  our  state  to 
her  rightful  position  in  the  sisterhood  of  the  states  of  the  Union. 

Thus  far  this  paper  has  dealt  with  the  Louisiana  lawyer  in 
his  capacity  as  a  lawyer,  and  in  his  connection  with  the  political 
activities  that  have  agitated  the  state.  I  present  him  now  in  the 
literary  contributions  that  he  has  made  to  its  laws,  and  to  its  ju- 
risprudence, and  generally  to  the  literature  of  the  period. 

Francois-Xavier  Martin  was  among  the  early  contributors 
to  the  literature,  both  legal  and  secular  of  the  state.  In  North 
Carolina,  where  he  resided  prior  to  his  appointment  by  President 
Madison  as  one  of  the  judges  of  the  Superior  Court  of  the  terri- 
tory, he  had  been  a  printer,  while  practicing  law.  There  he  had 
published  a  revision  of  the  laws  of  that  state,  a  work  on  Execut- 
ors, another  on  Sheriffs,  Their  Powers  and  Duties,  and  a  transla- 
tion of  Pothier's  work  on  Obligations,  from  the  French  into  Eng- 
lish. 

It  may  be  of  interest,  to  note  that  Martin  was  a  member  of 
the  order  of  Ancient  Free  and  Accepted  Masons,  and  that  in 
November,  1789,  at  the  funeral  of  Richard  Caswell,  Grand  Master 
of  that  order  in  North  Carolina,  who  had  been  a  general  in  the 
War  of  the  Revolution,  a  senator  in  Congress,  and  a  Governor  of 
the  state,  he  delivered  the  funeral  oration,  on  behalf  of  the  Grand 
Lodge  of  that  state.  This  address  appears  in  a  work  published  in 
1867,  entitled  Washington  and  his  Masonic  Compeers.  His  selec- 
tion for  this  duty  shows  the  position  that  he  had  attained  in  his 
adopted  home.  It  is  an  address  suited  to  the  occasion.  In  it  may 
be  detected  inaccuracies  of  expression,  showing  that  he  had  not 
yet  mastered  the  English  language.  His  quotations  from  Antony's 
oration  over  the  dead  body  of  Csesar  attest  his  familiarity  with 
the  works  of  the  great  English  poet. 

With  the  admission  of  the  state  into  the  Union,  the  Superior 
Court  of  the  territory  ceased  to  exist,  and  Martin  became  a  mem- 
ber of  the  Louisiana  bar,  being  admitted  to  practice  soon  after 
the  organization  of  the  Supreme  Court,  and  practiced  as  a  lawyer, 
acting  as  Attorney  General  of  the  new  state  until  his  appointment 


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to  the  supreme  bench  in  1815.  He  edited  and  published  the  re- 
ports of  the  territorial  Supreme  Court  in  two  volumes,  and  there- 
after the  18  volumes  of  the  Supreme  Court  Reports.  Meanwhile, 
he  had  written  the  history  of  Louisiana,  which  he  published  in 

1827.  This  work  was  republished,  in  the  early  80's  by  the  late 
James  A.  Gresham,  with  a  memoir  of  Judge  Martin,  by  Wm.  Wirt- 
Howe,  once  a  justice  of  this  court — ^a  monograph  rich  in  its  treas- 
ures of  historical  research,  and  a  most  valuable  contribution  to  the 
literature  of  the  law  of  our  state.  As  a  historian.  Judge  Martin's 
purpose  seemed  to  be  to  record  events  as  they  trafispired,  with 
little  in  the  way  of  deduction  or  comment.  Dr.  Monette,  in  his 
History  of  the  Valley  of  the  Mississippi,  while  quoting  liberally 
from  Martin,  states  that  there  was  some  confusion  of  dates,  and 
in  this  respect  inaccuracies  in  parts  of  Martin's  History. 

In  1817,  Marseilles,  the  place  of  his  birth,  hearing  of  the 
achievements  and  honors  of  her  illustrious  son,  elected  him  a  mem- 
ber of  her  Academy,  and,  in  1841,  Harvard,  the  leading  college  of 
his  adopted  country,  conferred  upon  him  the  degree  of  Doctor  of 
Laws. 

Though  not  in  order  of  time,  it  may  be  appropriate  here  to 
state  that  another  member  of  the  Louisiana  bar  condensed  the  20 
volumes  of  reports  published  by  Martin  into  10  volumes,  abridg- 
ing the  less  important,  and  reproducing  in  full  the  more  important 
opinions  of  the  court,  so  that  nothing  was  lost,  adding  an  analy- 
tical digest  of  the  20  volumes  of  excellent  arrangement  and  ac- 
curacy. The  author  was  Thomas  Gibbes  Morgan,  of  Baton  Rouge, 
La.,  a  gentleman  of  rare  accomplishments,  and  of  the  highest  rank 
as  a  citizen  and  lawyer. 

The  first  general  work  of  this  nature  was  a  digest,  in  two 
volumes  by  Moreau-Lislet,  of  all  general  legislation  from  1804  to 

1828,  to  which  he  appended  the  Treaty  with  France,  of  April  30, 
1803,  by  which  Louisiana  was  acquired ;  also  the  Constitution  of 
the  United  States,  and  the  Enabling  Act  of  Congress  of  February, 
1811,  under  which  the  territory  was  authorized  to  adopt  a  state 
Constitution,  preparatory  to  its  admission  as  a  state;  the  Consti- 
tution adopted  on  January  22,  1812;  the  act  of  Congress  of  April 
8,  1812;  and  the  supplementary  act  of  April  14,  1812,  by  which 
the  state  was  admitted  into  the  Union — so  that  the  heterogeneous 
and  cosmopolitan  people  of  the  state,  whether  American,  French, 
or  Spanish,  should  have  perfect  knowledge  of  all  the  pertinent 


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facts  by  which  Louisiana  had  become  one  of  the  states  of  the 
United  States,  the  organic  laws,  federal  and  state,  which  were  to 
govern,  and  the  definite  territorial  limits  within  which  these  laws, 
and  all  the  sovereign  functions  of  the  new  state,  were  to  operate 
as  the  successor  of  the  proconsular  governments,  alternately,  of 
France  and  Spain,  and  the  territorial  government  by  the  United 
States,  subsequent  to  the  date  of  the  purchase  in  1803, 

Thirteen  years  later,  the  revision  of  the  statutes,  from  the 
change  of  government  to  1841,  inclusive,  was  made  and  published 
by  the  collaboration  of  Henry  A.  BuUard,  a  Justice  of  the  Supreme 
Court,  and  Thomas  Curry,  Judge  of  the  Ninth  Judicial  District, 
who  found  time,  amid  their  judicial  labors,  to  do  this  work. 

Eleven  years  later  came  the  revision  of  the  statutes  by  those 
eminent  lawyers  Levi  Pearce,  William  W.  King,  and  Miles  Tay- 
lor, in  1852,  and  in  1856  this  was  followed  by  the  compilation, 
edited  and  published  by  U.  B.  Philips,  of  West  Feliciana,  a  lawyer 
of  much  ability  and  learning. 

The  next  revision  came  in  1870,  of  the  Code  of  Practice,  Civil 
Code,  and  Statutes,  made  necessary  by  the  changes  which  had 
been  superinduced  by  the  Civil  War,  edited  by  that  eminent 
lawyer,  John  Ray,  and  formally  adopted  by  the  General  Assembly. 

Although  43  years  have  passed,  we  are  without  subsequent 
authoritative  digest  or  revision  of  our  Codes  or  Statutes.  Not  that 
the  lawyers  of  our  state  have  been  unmindful  or  neglectful,  for  we 
have  had,  since,  repeated  editions  of  Codes  and  Statutes,  and  di- 
gests by  many  of  them ;  the  first,  by  Albert  Voorhies,  twice  Dis- 
trict Judge,  once  Associate  Justice  of  the  Supreme  Court,  and 
Lieutenant  Governor  of  the  state ;  then,  the  Revised  Laws  of  Lou- 
isiana, by  Solomon  Wolff,  following  the  Revision  of  1870,  with 
amendments  up  to  1910,  and  references  to  all  the  construing 
jurisprudence,  a  work  of  transcendent  merit,  and  of  indispensable 
utility  to  the  bench  and  bar,  as  well  as  to  the  layman.  Another 
work,  worthy  of  notice,  is  the  Index  to  the  Statutes  of  Louisiana, 
from  the  beginning,  up  to  the  date  of  its  first  publication,  by 
Robert  Hardin  Marr,  Jr..  a  work  of  the  greatest  utility  to  the  pro- 
fession, followed  by  a  second  edition,  which  brings  the  index  up 
to  1912.  This  author  has  also  given  us  a  work  on  the  Criminal 
Jurisprudence  of  Louisiana,  which  lightens  the  labor  of  judge  and 
lawyer,  and  is  received  as  authority  everywhere — the  same  au- 
thor, whose  name,  as  a  member  of  the  Commission  to  frame  a 


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Code  of  Criminal  Procedure, .  gives  earnest  that  the  issuance  of 
that  work,  now  in  embryo,  will  not  be  long  delayed. 

Another  illustration  of  the  labors  of  the  Louisiana  lawyer 
along  these  lines  is  found  in  the  project  for  the  revision  of  our 
Civil  Code  by  those  accomplished  lav^ryers,  R.  E.  Milling,  W.  0. 
Hart  and  Judge  W.  N.  Potts,  which  changes  the  original  text  to 
conform  to  the  jurisprudence,  and  to  present  conditions,  as  to 
many  provisions  of  that  Code. 

An  edition  of  the  Code  of  Practice  of  1828,  published  by  M. 
Greiner  in  1844,  with  luminous  references  to  the  jurisprudence 
and  statutory  amendments  up  to  that  date,  was  the  vade  mecum 
of  all  the  lawyers  of  50  years  ago. 

The  edition  of  the  same  Code,  annotated,  published  by  Henry 
L.  Garland,  and  the  revised  edition  of  this  work  by  Solomon  Wolff, 
which  brings  the  statutory  amendments  and  references  up  to 
1910,  are  works  of  the  highest  value. 

Other  editions  of  the  Civil  Code,  annotated  by  Upton  and  N. 
R.  Jennings  in  1838,  by  the  late  James  0.  Fuqua  and  Thomas 
Gibbes  Morgan,  in  English  and  French,  later  on  by  Judge  Eugene 
D.  Saunders,  in  the  80's  and  more  recently  by  E.  T.  Merrick,  Jr., . 
with  notes  of  his  father,  the  late  Chief  Justice  Merrick,  whose 
name  the  author  bears — ^the  last  edition  bringing  the  references 
up  to  1912 — all  of  great  value,  have  been  published,  attesting  the 
labors  of  Louisiana  lawyers  in  the  interest  of  the  state  and  people. 
Another  edition  of  the  Code  annotated  was  by  the  late  K.  A. 
Cross,  edited  by  Theo.  Roehl,  Esq. 

These  digests  and  revisions,  with  annotations  to  date,  were 
all  based  upon  the  original  Civil  Code,  which  was  the  labor  of 
Louisiana  lawyers  in  preparing  a  Code  for  the  new  American 
state,  for  the  most  part  taken  from  the  Napoleon  Code,  and  bear- 
ing the  same  relation  to  it  that  the  French  jurists  selected  by  Na- 
poleon bore  to  the  Napoleon  Code,  and  that  Tribonian  and  his 
colleagues  bore  to  the  Justinian  Code. 

The  Supreme  judicial  interpretation  of  the  laws  gave  the 
jurisprudence,  and  became  part  of  the  law.  -  Reports,  annually 
issuing,  accumulated,  and  necessitated  accurate  digests,  analytic- 
ally arranged,  and  to  this  need  the  Louisiana  lawyer  gave  response 
in  the  digests  of  the  decisions  of  the  Supreme  Court:  First  by 
Deslix;  then  by  Benjamin  and  Slidell;  then  by  W.  D.  Hennen  in 


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his  two  editions ;  by  Charles  Louque ;  by  S.  R.  &  C.  L.  Walker ;  by 
Mr.  Taylor ;  and  by  the  present  Chief  Justice,  Jos.  A.  Breaux. 

The  Reports  of  the  Decisions  of  the  Court  of  Appeal  by  Judge 
Frank  McGloin,  and  those  of  the  reorganized  court,  as  now  exist- 
ing, are  worthy  of  notice  as  valuable  contributions  to  the  literature 
of  the  law  of  our  state. 

Works  of  the  character  noticed — ^that  is,  the  revisions  and 
annotations  of  the  written  law,  or  the  proper  analysis  and  digest- 
ing of  judicial  opinions — involve,  necessarily,  incessant  labor,  in- 
dustry, research,  and  discrimination,  as  well  as  learning,  and  they 
all  stand  as  enduring  monuments  to  the  public  service  rendered 
by  the  lawyers  of  the  period  under  review. 

In  1847  Henry  M.  Spofford,  afterwards  a  Justice  of  the  Su- 
preme Court,  in  collaboration  with  District  Judge  E.  R.  Olcott, 
prepared  and  published  The  Louisiana  Magistrate.  It  was  in- 
tended for  the  use  of  justices  of  the  peace,  clerks  of  court,  no- 
taries, and  'sheriffs,  giving  their  powers  and  duties,  and  whence 
derived,  as  well  as  models  and  forms  for  their  official  acts.  It  was 
a  work  of  signal  merit,  so  plain  in  its  terms  that  the  veriest  Dog- 
berry, called  to  the  judgment  seat  in  the  important  work  of  arrest 
and  commitment  for  crime,  or  the  trial  and  judgment  and  ap- 
peal in  matters  of  civil  interest  involving  less  in  value  than  $100, 
could  have  no-  excuse  for  error  in  his  procedure,  no  matter  how 
wide  of  the  mark  the  arrows  of  his  judgment  might  fly.  A  re- 
vised edition  of  this  work  was  published  in  1870  by  J.  A.  Seghers 
and  Patrice  Leonard,  members  of  our  bar. 

The  survivors  of  the  bar  of  that  day,  especially  those  who 
practiced  in  the  country  parishes,  will  yield  the  palm  to  the  ac- 
complished and  polished  Spofford  for  this  incomparable  work, 
which  the  brilliancy  of  his  subsequent  career  as  a  Justice  of  the 
Supreme  Court  and  in  the  domain  of  politics  did  not  obscure  or 
cause  them  to  forget.  The  Civil  Law  of  Spain  and  Mexico,  by 
Gustavus  Schmidt,  in  1850,  commends  itself  to  all  civil  law 
lawyers,  who  have  interest  in  tracing,  to  their  source,  many  pro- 
visions of  our  Code.    It  is  a  work  worthy  of  remembrance. 

The  work  on  Citizenship  published  by  another  Louisiana 
lawyer,  Alexander  Porter  Morse,  my  classmate  in  the  Louisiana 
University,  is  one  evincing  learning  and  ability  of  the  highest  or- 
der, painstaking  research,  and  fine  discrimination.    He  was  the 


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counsel  of  the  Republic  of  France  in  the  80's,  before  the  Franco- 
American  Claims  Commission. 

We  may,  at  least,  claim  a  share  in  the  distinction  achieved  by 
Judah  P.  Benjamin,  whose  high  character  as  a  lawyer  was  fixed 
here,  and  who  went  hence  to  his  brilliant  career  as  a  United  States 
Senator,  then  as  cabinet  officer  to  the  Confederate  President,  and, 
after  the  defeat,  as  a  British  lawyer,  and  to  his  final  preferment 
as  Queen's  Counselor.  His  work  on  Sales  is  authority  every- 
where. 

The  industry  and  ability  of  the  late  Kimball  A.  Cross,  also 
my  college  mate,  remain  to  us  in  his  treatise  on  the  Louisiana  Law 
of  Pleadings  and  of  Successions. 

Another  contribution  was  a  work  on  Taxation,  a  vexed  and 
vexing  question,  which  for  30  years  past,  like  Banquo's  ghost,  has 
refused  to  down  at  our  bidding,  and  even  at  this  day  returns  to 
plague  the  lawyers  and  their  hapless  clients,  as  well  as  the  judges. 
Of  this  work,  Eugene  D.  Saunders,  lately  Dean  of  the  Law  De- 
partment of  the  Tulane  University  of  Louisiana,  and  sometime 
United  States  District  Judge,  was  the  author. 

Other  works  which  may  be  named  are,  one  by  M.  M.  Cohen, 
on  the  Admiralty,  another,  by  Judge  J.  E.  Leonard,  upon  Federal 
Practice  and  Proceduce,  and  an  Analytical  Digest  of  Tort  Cases 
in  Louisiana,  published  last  year,  supplementing  the  "analytical 
index  of  personal  injury  cases"  issued  in  1900  by  H.  H.  White,  of 
the  Alexandria  bar — all  works  of  merit  and  worthy  of  notice. 

Another  instance  of  the  labors  of  a  Louisiana  lawyer  is 
worthy  of  mention  before  this  tribunal,  where  he  sat  as  an  Asso- 
ciate Justice.  I  allude  to  the  late  Robert  Hardin  Marr.  He  found 
time,  amid  the  cares  of  an  active  and  extensive  practice,  to  trans- 
late from  the  French  into  the  English,  with  his  own  comments, 
notes,  and  references  appropriate  to  our  state,  the  commentaries 
of  Marcade. 

Marr  was  a  Tennessean,  and  had  achieved  rank  and  position 
there,  in  the  40's,  when  he  was  attracted  by  the  wider  field  of 
activity  in  this  city,  and  located  here.  By  his  application  he  ac- 
quired the  perfect  knowledge  of  the  French  language,  translating, 
writing,  and  speaking  it  with  accuracy.  Realizing  the  importance 
of  the  knowledge  of  this  language,  the  mother  tongue  of  a  great 
part  of  our  people,  he  knew  that  in  it  were  treasured  the  judicial 
pronouncements  and  the  commentaries    of    the    jurists    whose 


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works  have  made  France  immortal.  He  had  no  need  of  transla- 
tions, but  it  wais  his  desire  to  contribute  to  his  brothers  of  the  bar 
who  might  not  have  equal  advantages  the  works  of  those  jurists, 
just  as  translations  into  the  English  of  the  works  of  Domat  and 
Pothier  from  the  French,  and  of  the  Justinian  Code  and  the  Insti- 
tutes from  the  Latin,  had  placed  those  treasures  of  the  civil  law 
within  the  reach  of  all  English-speaking  students  and  lawyers. 
He  had  completed  his  work,  and  it  was  ready  for  publication, 
when  the  Civil  War  came  on,  and  he  left,  obedient  to  the  call  of 
duty.  During  the  occupation  by  the  federal  troops  and  his  en- 
forced absence,  this  literary  treasure  was  lost.  I  have  heard  from 
his  own  lips  the  story  of  the  laborious  care  spent  in  its  prepara- 
tion, and  his  sorrow  that  the  profession  should,  by  its  destruction, 
be  deprived  of  the  benefits  which  it  was  his  sole  purpose  to  confer. 

For  himself,  this  tribune  of  the  people,  in  their  after  days  of 
sore  affliction,  frail  and  delicate  physically,  but  intellectually  and 
morally  strong,  this  lost  work  was  not  needed  to  commemorate 
him  as  a  lawyer,  or  as  a  man. 

In  this  review  of  the  Louisiana  lawyer,  as  he  is  to  be  judged 
by  the  literary  evidences  of  his  labor,  I  beg  to  present  one  other — 
Bernard  J.  Sage,  in  his  work.  The  Republic  of  Republics,  issued 
from  London,  England,  in  1865,  its  third  edition  appearing  in 
1878,  a  volume  of  450  pages,  with  an  appendix  of  "much  apposite 
matter,  now  out  of  print,  but  instructive  and  valuable."  Mr. 
Sage  was  one  of  the  counsel  selected  for  the  defense  of  Jefferson 
Davis,  late  President  of  the  Confederate  States,  then  held  a  poli- 
tical prisoner,  on  the  charge  of  treason,  with  Charles  O'Connor,  of 
New  York,  as  leading  counsel.  By  understanding,  Mr.  Sage,  went 
to  London,  and  there,  incognito,  this  argumentative  review  of  the 
federal  Constitution  was  prepared,  purporting  to  be  the  "Mono- 
graph of  P.  C.  Centz,  Barrister,"  a  fictitious  name.  This  method 
of  issuance  was  adopted  because  of  the  fierce  sectional  prejudice 
existing  at  that  time,  and  the  fear  that  an  appeal  to  law  or  to 
reason,  from  any  southern  or  democratic  source,  would  not  be 
considered.  In  this  disguise  it  was  sent  to  the  President  of  the 
United  States,  to  the  Press,  and  to  many  leading  citizens,  and 
passed  current,  at  the  time,  as  the  work  of  an  English  lawyer. 
Its  first  form  was  that  of  a  protest  against  the  trial  of  Jefferson 
Davis  by  a  military  commission.  Its  burden  was  to  show  that  an 
act  of  a  citizen  of  any  one  of  the  United  States,  done  in  obedience 


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98  The  Louisiana  Historical  Qtmrterly 

to  the  call  of  his  state,  which  had  withdrawn  from  the  Union, 
whether  rightfully  or  wrongfully,  could  not  constitute  treason 
against  the  United  States  government,  which  represented  only 
those  states  remaining  in  the  Union,  and  therefore  that  Mr.  Davis 
could  not  be  successfully  tried  for  treason  under  the  Constitu- 
tion of  the  United  States.  It  was  read  by  the  then  President,  An- 
drew Johnson,  and  pronounced  by  him  "historically  and  logical- 
ly correct."  It  is  asserted  and  believed  that  this  unanswerable  ar- 
gument of  Mr.  Sage  appealed  to  the  great  lawyers  and  statesmen, 
then  advisory  to  the  federal  government,  and  that,  under  their 
advice,  the  issue  of  treason,  vel  non,  of  Mr.  Davis  was  allowed  to 
drag,  without  determination,  until  the  general  amnesty  proclama- 
tion of  the  President,  in  1868,  ended  the  matter. 

This  contention,  based  upon  a  compilation  of  all  that  had 
been  written,  or  stated,  in  the  formation  of  the  general  govern- 
ment, as  the  general  agency  of  the  sovereign  states,  operating  its 
authority  directly  upon  the  people,  only  within  the  limits  of  its 
delegated  powers,  was  not  new,  but  it  came  in  a  form,  that  at- 
tracted attention  from  the  men  in  power,  at  a  crucial  period, 
when  the  issue  could  no  longer  be  evaded.  It  may  have  contri- 
buted to  save  the  Constitution  from  further  breach,  and  to  leave 
untouched  the  principle  upon  which  rest  the  sovereign  rights  of 
every  state  of  the  Union. 

As  long  as  respect  for  this  system  shall  endure,  the  name  of 
this  Louisiana  lawyer  will  be  honored,  as  one  of  those  who  labor- 
ed successfully  in  his  day  for  the  supreme  benefit,  not  only  of 
his  own  state,  but  of  every  state  of  the  Union.  He  died  poor,  at  82 
years  of  age,  in  September,  1902,  and  his  remains  rest  in  hallow- 
ed ground,  in  the  Nicholls  tomb  at  Thibodaux. 

His  fitting  monument  is  this  work. 

It  should  be  a  text-book  in  every  institution  where  constitu- 
tional law  is  taught. 

There  is  nothing  in  it  to  indicate  that  Mr.  Sage  was  its  au- 
thor, but  I  know  from  himself  that  this  work  was  his  own.  I 
have,  as  a  treasured  souvenir  of  our  friendship,  a  copy  which  he 
gave  me  in  December,  1887,  with  my  name  and  his  inscribed  by 
his  own  hand. 

One  other  instance,  where  the  professional  labors  of  the 
Louisiana  lawyer  resulted  in  the  settlement  of  a  constitutional 
question  of  interest  to  the  state  and  to  the  people  deserves  men- 


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tion  here.  It  grew  out  of  the  prosecution  and  trial,  before  the 
United  States  Circuit  Court,  in  this  city,  of  a  number  of  persons 
who  had  participated  in  the  riot  of  April,  1873,  at  Colfax,  in 
Grant  parish,  charged  with  crime  committed  on  account  of  the 
race  and  color  of  the  victims.  After  conviction  by  the  jury,  on 
certain  of  the  counts,  a  motion  in  arrest  was  interposed,  raising 
the  question  whether  the  prohibitions  of  the  fourteenth  amend- 
ment were  operative  directly  upon  the  people  as  individuals,  or 
only  as  an  additional  limitation  to  the  power  of  the  state.  At  the 
argument  the  Circuit  Judge,  the  late  W.  B.  Woods,  and  the  As- 
sociate Justice  of  the  Supreme  Court,  Mr.  Justice  Bradley,  dif- 
fered in  opinion,  and  certified  the  question  to  the  Supreme  Court, 
which  sustained  the  motion  in  arrest.  I  had  the  honor  to  par- 
ticipate in  the  conference  at  which  this  motion  in  arrest  was 
drawn.  This  settlement  ended  prosecutions  of  that  kind  before 
the  federal  tribunals,  and  was  a  boon  to  the  people  of  the  Southern 
States,  who  were  struggling  to  free  their  states  and  themselves 
from  the  rule  of  an  inferior  race. 

Robert  H.  Marr,  Sr.,  Judge  William  R.  Whitaker,  and  E. 
John  Ellis,  for  10  years  member  of  Congress  from  this  state,  all 
of  whom  have  passed  away,  were  the  counsel  who  raised  and 
argued  that  question. 

No  sketch  of  the  work  of  our  lawyers  in  the  line  of  the  litera- 
ture of  the  law  would  be  complete  without  reference  to  the  work 
of  Mr.  Henry  Denis  on  the  Contract  of  Pledge,  published  in  1898, 
wherein  he  treats  of  the  pledge  at  common  and  at  civil  law.  This 
work  is  a  distinct  addition  to  the  sum  of  legal  knowledge.  For 
years  Mr.  Denis  was  Reporter  of  the  decisions  of  this  court,  and 
also  Professor  of  Civil  Law  in  our  University. 

Outside  of  the  literature  of  the  law,  the  lawyers  of  the  period 
under  review  have  made  valuable  contributions  to  the  general 
literature. 

Charles  Gayarre,  a  lawyer  and  judge,  Federal  Senator,  As- 
sistant Attorney  Geheral,  and  for  years  Secretary  of  State,  was 
the  author  of  the  History  of  Louisiana  as  a  State,  as  a  Territory, 
and  of  the  Romance  of  that  History,  also  of  the  Life  of  Philip  Sec- 
ond of  Spain,  and  other  publications. 

A  little  work,  but  worthy  of  mention  for  its  merit,  is  Grand- 
mother's Tales  of  the  Acadians — that  heroic  and  devoted  people 
who,  true  to  their  religion  and  to  the  land  of  their  origin,  when 


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100  The  Louisiana  Historical  Quarterly 

driven  by  met ciless  oppression  from  their  homes  in  Acadia,  now 
Nova  Scotia,  found  their  way  to  Louisiana,  where  floated  the 
banner  of  La  Belle  France,  with  its  spotless  lilies,  and  where  her 
rich  language  was  spoken,  cast  their  humble  lot  in  that  dream- 
land along  the  silvery  Teche,  destined  to  give  to  the  state  of  their 
adoption  some  of  its  most  distinguished  citizens,  in  peace  and  in 
war,  came  to  us  almost  as  a  lullaby  of  our  childhood,  from  the 
pen  of  Judge  Felix  Voorhies,  my  classmate,  and  still  an  honored 
member  of  the  bar.  Alas,  that  it  should  shatter  some  of  the  idols 
that  the  genius  of  Longfellow,  in  his  matchless  Evangeline,  had 
created.  Alas,  that  grandmother's  tradition  has  written  down 
Gabriel  as  false  and  faithless.  Alas,  that  sweet  spirited  Evange- 
line, broken-hearted  and  bereft  of  reason,  rests,  after  life's  fitful 
dream,  in  the  cemetery  of  beautiful  Lafayette.  "Correspondence 
with  My  Son  at  Princeton,"  published  in  1858,  by  James  H.  Muse, 
after  the  tragic  death  of  his  son,  on  the  ill-fated  steamer  "Col. 
Crossman,"  may  here  be  mentioned.  Mr.  Muse  was  a  distin- 
guished lawyer,  and  as  a  legislator  was  the  author  of  the  statute 
abolishing  imprisonment  for  debt  in  this  state. 

And  how  upon  us  steals  the  sad  dreamy  poesy  of  the  brilliant 
Richard  Henry  Wilde.  Mr.  Wilde  had  been  Attorney  General  of 
Georgia,  and  for  eight  years  a  member  of  Congress  from  that 
state.  He  became  a  member  of  the  Louisiana  bar  in  the  40's  and 
was  professor  of  Constitutional  Law  in  our  University.  His 
monograph  on  Dante,  the  Italian  poet,  and  on  Torquato  Tasso, 
survive  him.  But  it  is  his  poetry  that  has  preserved  his  name 
and  memory.  Colonel  William  H.  Sparks,  in  his  Recollections  of 
Fifty  Years,  a  work  of  rare  merit,  published  in  1870,  that  per- 
petuates so  much  of  interest  regarding  the  lawyers  and  public  men 
of  the  early  days  of  our  history  as  a  state,  thus  quotes  S.  S.  Pren- 
tiss, the  great  orator,  a  member  of  the  Louisiana  bar :  Repeating 
Wilde's  verse: 

"My  life  is  like  the  prints  which  feet 
Have  left  on  Tampa's  desert  strand. 
Soon  as  the  rising  tide  shall  beat, 
All  trace  will  vanish  from  the  sand. 
Yet,  as  if  grieving  to  efface 
All  vestige  of  the  human  race, 
On  that  lone  shore,  loud  moans  the  sea, 
But  none,  alas,  shall  mourn  for  me," 


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Prentiss  said: 

"Why  did  not  Wilde  give  his  life  to  literature,  instead  of  the 
musty  maxims  of  the  law?  Little  as  he  has  written,  it  is  enough 
to  preserve  his  fame  as  a  true  poet.  He  was  distinguished  as  a 
lawyer,  and  as  a  Congressman,  but  his  name  and  fame  will  only 
be  perpetuated  by  his  verse,  so  tender,  so  true  to  the  feelings  of 
the  heart.  It  is  the  heart  which  forms  and  fashions  the  romance 
of  life,  and  without  this  romance,  life  is  scarcely  worth  the  liv- 
ing." 

Doubtless  there  are  other  literary  works  of  the  members  of 
the  bar  that  have  escaped  this  notice. 

If  to  this  record  of  extrajudicial  and  extraofficial  legal  ef- 
fort be  added  the  opinions  of  the  judges,  reported  from  the  first 
of  Martin  to  the  current  volume,  the  innumerable  briefs  of  the 
lawyers  engaged,  filed  with  every  submitted  case,  and  frequently 
perpetuated  by  the  reporters,  the  vast  proportions  of  the  labors  of 
the  lawyers  of  this  state,  in  the  great  work  of  forming  and 
shaping  her  institutions,  and  policy,  and  jurisprudence,  will  ap- 
pear. 

It  must  not  be  supposed  that  all  that  has  been  said  of  matters 
where  lawyers  have  been  controlling  factors  in  molding  the  juris- 
prudence, or  in  shaping  the  policy  of  the  state,  or  wherever  they 
have  impressed  their  influence  upon  conditions  affecting  the  peo- 
ple, was  the  result  of  combination,  or  organization,  upon  their 
part.  It  was  all  the  result  of  unorganized,  individual  effort,  in 
the  practice  of  the  profession,  or  in  the  ordinary  walks  of  life. 

It  is  only  of  recent  years  that  bar  associations  have  become 
factors  for  the  greater  benefit  of  the  profession  and  of  the  peo- 
ple. The  American  Bar  Association,  and  the  associations  in  the 
States,  strengthening  and  supporting  its  recommendations,  have 
become  potential  factors  for  the  general  good.  Of  the  former, 
more  than  130  Louisiana  lawyers  are  members,  and  many  of  them 
are  also  members  of  the  State  Bar  Association. 

First  of  all,  its  influence  has  brought  higher  standards  of 
qualification  for  admission  to  the  bar.  The  requirement  of  liberal 
general  education,  with  longer  terms  of  study  and  instruction  in 
the  law,  is  one  feature.  The  adoption  of  a  code  of  ethics,  incul- 
cating morality,  gentility,  fairness,  and  integrity  in  the  pro- 
fessional life  and  practice  of  the  lawyer,  with  the  suggestion  that 


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it  be  taught  to  the  student  as  a  distinctive  branch,  is  another 
and  all-important  one. 

Another  is  found  in  the  effort  to  bring  about  uniformity  in 
the  laws  of  the  several  states  of  the  Union  in  matters  of  commer- 
cial regulations,  such  as  negotiable  instruments,  bills  of  lading, 
and  many  other  subjects,  that  concern  the  general  interests  of  the 
people.  Our  own  statutes,  of  recent  enactment,  on  the  two  sub- 
jects last  mentioned  are  results  brought  about  by  the  bar  for  the 
general  welfare. 

Success  has  also  crowned  their  efforts  in  the  recent  law  regu- 
lating the  practice  before  the  courts  by  which  unnecessary  and 
wasteful  delays  in  bringing  cases  at  law  to  their  determination 
will  be,  to  a  great  extent,  avoided. 

The  limits  of  this  paper  will  not  admit  of  further  detail.  The 
Louisiana  Bar  Association  is  on  the  threshold  of  its  activities 
and  usefulness.  Its  motives  are  disinterested ;  its  purposes  look 
to  the  general  welfare ;  its  desire  is  to  place  the  laws  of  the  state 
and  the  administration  of  justice  on  a  footing  to  keep  pace  with 
the  requirements  of  this  age,  in  all  matters  where  this  can  be 
done  consistently  with  the  unchanging  rules  of  justice  and  right. 

One  other  observation.  I  would  be  recreant  to  my  duty  as 
a  judge,  if  I  should  fail  to  declare,  in  this  presence,  the  assistance 
that  the  Bar  Association  has  always  rendered  to  the  courts.  The 
amicus  curiae,  as  we  have  known  him,  has  generally  been  some 
member  of  the  bar,  representing  interests  identical  with  those  of 
one  or  the  other  side  of  the  controversy  on  trial,  but  not  of  coun- 
sel. For  this  interest,  which  he  may  be  employed  to  serve,  he  ap- 
pears on  the  brief,  ostensibly  as  amicus  curiae.  That  the  assistance 
to  the  court  is  generally  valuable  there  can  be  little  doubt,  but 
with  experienced  judges  the  appearance  may  bring  some  such 
measure  of  distrust  as  in  the  olden  days  attached  to  the  Greeks 
when  they  came  bearing  gifts,  and  the  effort  of  this  "friend  of  the 
court,"  perhaps  is  received  and  considered  as  that  of  counsel 
regularly  employed.  Doubtless  in  every  such  case  the  motives 
of  counsel  have  been  honorable  and  praiseworthy  but  generally 
the  appearance  has  been  that  of  the  interested  attorney. 

It  is  not  so  with  the  Bar  Association,  when  called  upon  by  the 
judges.  In  two  instances  of  serious  importance  the  Civil  District 
Court  has  had  occasion  to  take  measures :  First,  in  the  matter  of  a 
statute  requiring  their  action  in  the  readjustment  of  certain  of- 


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ficial  salaries  payable  out  of  the  judicial  expense  fund;  second, 
as  to  the  proceedings  to  be  had  in  the  adjudication  and  security  to 
be  given  by  the  adjudicatee  in  the  matter  of  the  Fiscal  Agency 
for  the  keeping  of  the  large  funds  that  come  into  the  registry  of 
the  court.  Those  were  questions  of  serious  public  importance. 
Doubts  as  to  the  constitutionality  of  the  first  of  these  led  the 
judges  to  request  the  assistance  of  the  Bar  Association,  and  forth- 
with there  came  three  of  its  members  each  one  of  whom  had  been 
its  president.  They  gave  to  us,  freely  and  without  stint,  the  re- 
sults of  their  painstaking  research,  and  the  force  of  their  reason- 
ing, in  argument,  and  led  us,  as  we  believe,  to  a  safe  and  wise 
determination,  from  which  no  appeal  was  taken. 

In  the  second  instance,  the  president  of  the  association,  here 
today,  leading  in  these  ceremonies,  came  at  our  request,  and  gave 
the  result  of  his  thorough  research  and  examination,  bringing 
a  solution,  to  the  satisfaction  of  all  concerned,  which  will  stand 
as  a  precedent  in  this  most  important  duty  of  safeguarding  the 
public  interest,  in  the  selection  of  the  Fiscal  Agent  Bank,  and 
the  form  of  security  to  be  given. 

It  is  a  pleasure,  as  well  as  a  duty,  to  acknowledge,  in  this 
presence,  these  disinterested  and  meritorious  services. 

Representing  the  period  closing  this  day,  four  generations  of 
lawyers  appear.  They  embrace  those  who  participated  in  the  or- 
ganization of  Louisiana  as  a  state,-  and  in  the  forensic  contests 
that  framed  our  early  jurisprudence,  and  they  include  the  rising 
generation  of  lawyers,  just  admitted  to  the  bar,  who  gives  so  much 
promise  of  usefulness. 

Among  them  appear  a  number  who  have  served  as  Governors 
of  our  state,  many  who  have  represented  the  people  in  the  two 
houses  of  the  federal  Congress,  two,  at  least,  who  have  been  cabi- 
net officers,  two  who  were  ambassadors  to  the  Court  of  France,  two 
others  to  the  Republic  of  Mexico,  one  who  was  ambassador  to  the 
Russian  Court,  and  another  to  the  Court  of  Spain.  Still  another 
was  the  special  minister  and  envoy  of  the  government  of  the  Con- 
federate States  to  the  European  powers  during  the  Civil  War. 
One  of  them,  who  served  for  years  as  a  state  district  judge,  and 
as  a  member  of  the  Constitutional  Convention  of  1879,  was  ap- 
pointed judge  of  the  federal  Circuit  Court,  and  afterwards  was 
promoted  to  the  Circuit  Court  of  Appeals  for  this  circuit,  and  is 
now  the  president  of  that  tribunal,  a  position  second  only  to  that 


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of  Justice  of  the  federal  Supreme  Court.  He  is  with  us  today, 
sitting  as  an  invited  guest  of  the  Justices  of  this  court.  Another, 
who  became  a  member  of  our  bar,  was  for  some  years  an  As- 
sociate Justice  of  the  Supreme  Court  of  the  United  States.  Still 
another,  a  native  of  Louisiana,  once  a  Justice  of  this  court,  after- 
wards a  senator  in  the  federal  Congress,  later  became  an  Asso- 
ciate Justice,  and  is  now  the  Chief  Justice  of  the  Supreme  Court 
of  the  United  States. 

Three  of  them  have  been  presidents  of  the  American  Bar 
Association — ^the  first,  in  his  day,  the  acknowledged  leader  of  the 
bar,  a  senator  in  the  Confederate  Congress,  once  Attorney  Gen- 
eral of  the  state,  genial  and  high-spirited,  whose  gentle  and  en- 
gaging manners,  aside  from  his  transcendent  abilities,  bound  him, 
as  with  hooks  of  steel,  to  our  affections. 

Another,  who  came  with  an  invading  army,  and  after  the 
Civil  War  located  here,  soon  won  our  admiration  and  esteem  by 
his  personal  qualities  and  high  accomplishments,  and  especially  as 
a  Justice  of  the  Supreme  Court  in  1872,  when  he  refused  to  take 
part  in  the  conspiracy  that  placed  our  state  under  a  usurpatory 
government — ^the  fabrication  of  an  infamous  election  returning 
board — and  resigned  his  high  office,  who.  like  Pilate,  seeing  that 
his  opposition  could  "prevail  nothing,"  '*took  water  and  washed 
his  hands,"  refusing  to  be  a  party  to  the  subjugation  and  wrongs 
of  a  brave  and  liberty-loving  people. 

The  third  is  with  us — and  long  may  he  remain — the  unques- 
tioned leader  of  our  bar,  in  whose  matchless  abilities,  civic  virtues, 
and  public  spirit,  as  a  citizen,  we  take  pride,  as  we  hail  him  our 
colleague  and  friend. 

Another  public  service  rendered  by  the  lawyers  of  this  period 
is  that  since  the  foundation  of  the  law  department  of  our  Univer- 
sity its  professors,  with  few  exceptions  of  late  years,  were  mem- 
bers of  the  bench  and  bar  of  this  state. 

In  the  Civil  War  almost  all  of  our  lawyers  of  the  arms-bear- 
ing age  took  military  service — many  as  private  soldiers,  a  number 
who  attained  the  rank  of  brigadier  or  major  general,  many  more 
who  became  field  officers  or  commanders  of  batteries.  Many  of 
them  lost  their  lives;  many  received  grievous  wounds.  Shining 
examples  of  the  volunteer  soldiery  of  those  fateful  days  are  be- 
fore us  today  in  the  persons  of  three  of  the  Justices  of  this  court. 


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and  two  of  their  invited  guests  of  the  federal  courts,  presiding 
with  them. 

Some  followed  the  flag  of  the  Union,  and  many  more,  the 
banner  of  the  South. 

Time  has  sped  away,  and  50  years  separate  us  from  those 
eventful  days.  Through  their  gathering  mists  and  shadows,  the 
young  and  dashing  soldier  has  disappeared,  and  with  him  have 
gone  the  antagonisms  and  bitterness  of  that  unhappy  period,  as 
well  as  the  issues  that  called  him  to  the  tented  field. 

Those  of  us  who  survive,  as  veterans  of  that  civic  strife,  are 
no  longer  enemies.    We  are  comrades  and  friends — citizens  of  one  . 
common  country. 

We  have  learned  to  respect  each  other's  feelings  and  motives ; 
our  children  have  intermarried,  and  our  interests  have  become 
identified.  Without  excuse,  or  apology,  for  what  has  been  in  the 
past,  without  revival  or  discussion  of  issues  that  have  been  settled, 
we  all  are  content  that  the  stars,  which  gleamed  in  the  blue  cross 
banner  of  the  South  now  shine  resplendent  in  the  spangled  flag 
of  the  Union,  the  representatives  of  free,  peaceful,  and  coequal 
states. 

That  restoration  has  been  complete  was  proven  in  the  recent 
war  with  Spain,  when  the  youth  of  the  South  rallied,  en  masse,  to 
the  standard  of  the  Union,  among  them  some  who  are  now  among 
the  leading  lawyers  of  this  state. 

Cursory  and  incomplete,  this  review  of  the  Louisiana  bar,  in 
its  relation  to  the  jurisprudence,  to  the  literature,  to  the  general 
affairs  of  the  state,  and  to  the  political  events  of  the  last  100 
years,  has  ended.  If  time  would  admit  of  personal  notice  of  many 
of  its  members,  the  recital  of  their  high  qualities  as  men,  their 
abilities  and  accomplishments,  would  be  full  of  interest. 

And  now  we  ring  down  the  curtain  upon  the  first  century  of 
Louisiana  lawyers. 

As  they  pass  us  in  review,  memory  recalls  so  many  noble 
spirits,  the  friends  of  our  earlier  days  and  manhood,  the  loving, 
the  brave,  the  learned,  the  eloquent,  the  brilliant,  the  refined,  the 
devoted,  the  true ! 

We  strew  sweet  flowers  of  affection  upon  the  bier  of  each  one 
who  has  passed  to  the  Eternal  Beyond,  and  drop  the  sympathetic 
tear  as  we  proudly  and  confidently  give  them  to  the  judgment  of 
history,  which,  with  stern  justice,  shall  pass  upon  the  quick  and 


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106  The  Louisiana  Historical  Quarterly 

the  dead.  And  on  this  day  we  register  our  faith  that,  in  that 
Grand  Assize,  when  the  summing  up  shall  give  the  "whole  truth, 
and  nothing  but  the  truth."  and  when  there  shall  be  no  error  of 
judgment,  the  lawyers  composing  the  Louisiana  bar  of  the  past 
100  years  will  stand  with  those  who  have  served  well  in  their  day 
and  generation — among  those  "good  and  faithful  servants,"  to 
whom  shall  be  given  the  glad  plaudit,  "Well  done." 


The  Centennial  Year. 

By  Joseph  A.  Breaux,  Chief  Justice. 

Thoughts  regarding  the  early  judicial  history  of  the  state 
suggest  themselves  on  this  occasion,  after  having  heard  the  elo- 
quent addresses  made  in  the  presence  of  this  distinguished  au- 
dience. 

In  the  early  part  of  the  century  just  passed,  Louisiana  was 
fortunate  in  having  able  jurists  on  the  bench  and  at  the  bar.  Juris- 
prudence at  first  was  in  an  incongruous  condition  even  after  the 
state  had  passed  under  the  dominion  of  the  United  States.  She 
observed  a  set  of  civil-law  rules  strangely  compounded  of  the 
English  Case  Law,  French  Code  Law,  and  Spanish  Usages.  Each 
citizen,  doubtless,  favored  the  system  of  laws  of  the  country  in 
which  he  was  born  and  reared.  This  was  not  conducive  to  a  satis- 
factory condition.  The  people  of  the  state  succeeded  in  emanci- 
pating themselves  from  this  strange  compound  of  laws  by  adopt- 
ing a  code  system  and  also  by  adopting  the  best  principles  of  the 
common  law,  that  beautiful  system  which  originated,  it  is  said,  in 
the  forests  of  ancient  Germany. 

The  Roman  classic  system  needs  no  commendation  to  the  ex- 
tent that  it  has  been  adopted  in  this  state.  As  to  the  common  law, 
the  other  part  of  our  present  system,  some  one  has  said  it  is 
based  on  Saxon  customs  molded  by  Norman  lawyers ;  it  does  not 
suggest  a  museum  of  remote  antiquity,  none  the  less  we  always 
seek  to  find  a  worthy  past  for  all  that  is  good.  The  two  systems 
of  law,  civil  and  common,  were  blended.  The  results  of  the  la- 
bors of  the  bench  and  bar  of  that  period  are  still  felt.  Although 
a  century  has  passed,  during  all  these  years  these  united  systems 
of  laws,  civil  and  common,  have  come  down  to  us  with  the  impress 
placed  upon  them  in  the  early  years  of  the  century. 


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Centenary  of  The  Supreme  Court  107 

Sir  Henry  Maine,  in  one  of  his  interesting  published  lectures, 
says  of  our  Code  (and  I  quote  him  literally)  that  of  all  the  re- 
publications of  the  Roman  law  it  is  the  one  that  appears  to  him 
the  fullest,  the  clearest,  the  most  philosophical  and  the  best  adapt- 
ed to  the  exigencies  of  modern  society.  The  author  also  asserts 
in  his  lecture  on  Roman  law  that,  as  adopted  in  Louisiana,  it  has 
produced  "sensible  effects  on  the  older  American  states." 

The  late  Mr.  Carter,  an  eminent  lawyer  of  the  New  York  bar, 
having  retired  from  active  practice,  devoted  the  evening  of  life  to 
the  study  of  the  Philosophy  and  Origin  of  Law.  In  a  book  recently 
published,  he  comments  favorably  regarding  Louisiana  and  her 
laws. 

The  jurists  of  the  early  days  of  Louisiana  well  understood  the 
effects  of  the  laws  upon  society.  The  morality  and  progress  that 
the  laws  foster;  the  great  power  of  justice  in  human  affairs. 
Referring  especially  to  those  jurists  of  other  days,  we  might  say 
of  them  that  in  their  trying  difficulties  they  have  succeeded  as 
well  as  those  of  other  climes  and  other  countries  in  developing  a 
reasonably  satisfactory  system  of  laws. 

A  hundred  years  of  judicial  history!  During  that  time  many 
changes  have  taken  place  in  the  administration  of  the  laws.  None 
the  less  there  still  remains  something  of  the  remote  past.  The 
frequent  saying  that  time  does  away  with  all  things  is  not  al- 
ways true ;  all  is  not  reduced  to  dust ;  must  of  the  great  and  useful 
remains.  Among  these  are  our  system  of  laws  and  the  records  of 
our  jurisprudence.  Those  of  an  early  date  still  offer  inviting 
fields  to  the  student  of  law  and  to  the  older  members  of  the  pro- 
fession as  well. 

There  is  a  complete  list  of  the  reports  of  decisions  of  each 
year  from  the  first  handed  down  in  territorial  days  to  date.  They 
contain  valuable  records  of  communites,  of  families,  of  titles,  and 
of  other  vast  and  varied  interests  of  a  state  and  of  her  people. 
The  records  of  all  these  years  are  complete  except  two  years  (1863 
and  1864,  during  which  time  there  were  no  regular  decisions  ren- 
dered) .  There  was  a  provisional  court  organized  with  undefined 
jurisdiction.  Judge  Peabody  (by  whose  name  the  court  is  some- 
times known)  wrote  a  pamphlet  about  his  court — a  copy  of  which 
I  happen  to  have  in  my  possession.  Among  other  things  he  says 
that  during  the  Civil  War,  to  serve  a  process  outside  of  the  city, 
it  required  a  squadron  of  cavalry  and  a  section  of  artillery. 


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The  records  of  that  court  were  deposited  in  Washington,  D, 
C.  The  student  of  history  may  some  day  find  in  them  something 
to  read. 

After  this  allusion  to  the  judiciary — ^which  I  am  purposely 
anxious  not  to  make  lengthy — I  pass  without  transition  (as  they 
are  a  part  of  the  courts)  to  the  practicing  attorneys.  They  have 
an  advantage  over  the  members  of  the  bench  who  are  only  of 
one  bench;  the  functions  of  the  judges  extend  no  further,  while 
the  practicing  attorneys  are  members  of  all  the  courts.  The  good 
lawyer  is  a  good  citizen.  I  hope  no  one  will  think  that  I  am  in- 
fluenced by  Vanity  Fair  when  I  say  that  he  is  a  good  man.  The 
well-informed,  intelligent,  and  independent  lawyer  deserves  (and 
nearly  always  everywhere  receives)  just  an  entitled  recognition 
and  consideration. 

There  are  prominent  names  in  other  fieldsof  endeavor  in  this 
state;  none  more  prominent  than  those  of  her  lawyers.  Not 
wishing  to  mention  those  of  a  recent  date,  it  is  a  pleasure  to  name 
Edward  Livingston,  pronounced  by  Jeremy  Bentham  and  others 
the  first  legal  genius  of  modern  times,  Etienne  Mazureau,  John 
R.  Grymes,  J.  P.  Benjamin.  There  are  many  others  well  known 
to  tradition  and  to  history. 

We  have  with  us  on  this  occasion  distinguished  judges  of  the 
federal  courts,  to  whom  we  extended  a  most  hearty  welcome.  We 
have  also  extended  the  right  hand  of  friendship  to  our  Brothers 
of  the  different  courts  of  the  state  present.  Likewise  we  have  had 
the  great  pleasure  of  welcoming  Governor  Hall  and  of  listening  to 
his  interesting  address. 

The  name  of  Hall  is  suggestive.  Judge  Dominick  Hall  of  the 
state  Supreme  Court  in  1813  (a  short  time  thereafter  judge  of 
the  federal  court),  had  been  arrested  on  order  of  General  Jack- 
son. Judge  Martin  in  his  history  of  Louisiana  states  that  Judge 
Joshua  Lewis  of  the  state  court  left  his  camp  with  a  writ  of 
habeas  corpus  to  compel  General  Jackson  to  release  Judge  Hall. 
Judge  Martin  adds :  Judge  Lewis  was  a  member  of  the  Orleans 
Rifles,  one  of  the  companies  of  General  Jackson  serving  at  Chal- 
inette,  and  was  at  the  camp  of  his  company  when  he  issued  the 
order.  Thereupon  General  Jackson  ordered  the  arrest  of  Judge 
Lewis,  but  changed  his  mind  and  recalled  the  order  of  arrest  and 


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Centenary  of  The  Supreme  Court  109 

immediately  released  Judge  Hall.  The  sturdy  General  doubtless 
came  to  the  conclusion  that  two  judges  in  the  right  were  more 
than  a  match  for  him. 

The  incident  is  mentioned  in  order  to  add  that  in  those  days 
the  best  of  feeling  must  have  existed  between  the  state  and  the 
federal  authorities. 

The  fraternal  feeling  began  early  in  our  history.  May  it 
continue  always !  Courts  reasonably  united,  all  seeking  to  proper- 
ly administer  the  laws,  are  among  the  powerful  agencies  in  the 
cause  of  "faith,  of  country,  and  of  home." 


Prayer. 

Offered  by  the  Rt.  Rev.  Davis  Sessums,  Bishop  of  Louisiana. 

Let  the  words  of  my  mouth,  and  the  meditation  of  my  heart, 
be  always  acceptable  in  Thy  sight,  0  Lord,  my  Strength  and  my 
Redeemer. 

0  Lord  God,  the  Supreme  Governor  of  all  the  earth,  look 
down,  we  pray  Thee,  upon  all  who  bear  rule  among  Thy  people 
and  upon  those  who  are  appointed  to  execute  justice,  and  especial- 
ly upon  the  Supreme  Court  of  this  commonwealth.  Give  them  wis- 
dom and  grace,  we  beseech  Thee,  ri;?htly  and  impartially  to  dis- 
charge their  solemn  duties,  so  that  l)y  their  judgments  and  de- 
crees law  and  order  may  be  upheld,  justice  be  administered,  inno- 
cence relieved,  the  claims  of  mercy  be  duly  regarded,  righteous- 
ness be  promoted,  and  the  establishn:-?nt  of  Thy  Kingdom  be 
advanced  amongst  men. 

Enlighten,  we  pray  Thee,  all  who  frame  the  laws  of  this  land, 
and  especially  of  this  state,  and  increase  and  strengthen  amongst 
the  people  the  spirit  of  obedience  as  the  safeguard  of  liberty.  To 
those  who  judge  and  those  who  obey  impart,  we  beseech  Thee, 
single-minded  devotion  to  the  truth ;  so  that  prosperity  and  moral 
and  religious  welfare  may  be  joined  together,  and  peace  and  hap- 
piness be  multiplied  amongst  us ;  through  Jesus  Christ  our  Lord. 
Amen. 

The  grace  of  our  Lord,  Jesus  Christ,  and  the  love  of  God,  and 
the  fellowship  of  the  Holy  Ghost,  be  with  us  all  evermore.  Amen. 


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110  The  Louisiana  Historical  Qtmrterly 

Appendix. 

The  Celebration  of  the  Centenary  of  the  Supreme  Court  of 

Louisiana,  Saturday,  the  First  Day  of  March, 

Ninenteen  Hundred  and  Thirteen, 

■  New  Orleans. 

THE  COURT— 1813. 

Dominick  Augustin  Hall. 

George  Mathews. 

Pierre  Derbigny. 

Attorney  General:     Francois-Xavier  Martin. 

THE  COURT— 1913. 

Chief  Justice:    Joseph  A.  Breaux. 

Associate  Justices :   Frank  A.  Monroe,  Olivier  O.  Provosty, 

Alfred  D.  Land,  Walter  B.  Sommerville. 

Clerk  of  Supreme  Court  of  Louisiana:  Paul  E.  Mortimer. 

Attorney  General:    Ruff  in  G.  Pleasant. 

CEREMONIES. 

Saturday,  March  First,  Nineteen-Thirteen  in  the 

New  Court  House  Building. 

En  Banc. 

The  Supreme  Court  of  Louisiana  and  the  Judges  of  the 

Federal  Courts. 

Invocation, 
Very  Rev.  J.  D.  Foulkes,  S.  J. 

Minutes, 

(Monday,  March  1,  1813) 

Paul  E.  Mortimer,  Clerk. 

Opening  Address^ 
Joseph  W.  Carroll,  Master  of  Ceremonies. 

Address  of  Welcome, 
Governor  Luther  E.  Hall. 

The  Centenary  of  the  Supreme  Court, 

"The  History,"  Henry  Plauche  Dart. 

*The  Jurisprudence,"  Charles  Payne  Fenner. 

"The  Bar,"  Thomas  C.  W.  Ellis. 


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Centenary  of  The  Supreme  Court  111 

Response  by  the  Chief  Justice, 
Joseph  A.  Breaux. 

Benediction, 
Right  Rev.  Davis  Sessums,  D.  D. 

THE  SUPERIOR  COURT  OF  THE  TERRITORY 
OF  ORLEANS 

Ephraim    Klrby , Mar.    1804-Oot.    2,    1804 

John  B.  Prevost Mar.  1804-Nov.  14,  1808 

William  Sprigg Jan.  17,  1806-Nov.  10,  1806 

George  Mathews Jan.  19,  1806-Mar.  1,  1813 

Joshua  Lewis    Nov.    10.    1806-Mar.   1.   1813 

John  Thompson   Nov.  14,  1808-Mar.  21,  1810 

Francois -Xavier  Martin   Mar.  21,  1810-Mar.  1,  1813 

THE  SUPREME  COURT  OF  THE  STATE 
OF  LOUISIANA. 

Dominick  Augustin  Hall Mar.  1,  1813-July  3,  1813 

George  Mathews  Mar.  1,  1813-Nov.  14.  1836 

Pierre  Derbigny   Mar.  9,  1813-Dec.  15,   1820 

Francois-Xavier  Martin   Feb.   1,  1815-Mar.  19,  1846 

Alexander  Porter,  Jr Jan.  2,  1821-Dec.  16,  1833 

Henry  Adams  BuUard Feb.  4  ,1834-Feb.  1,  1839 

Henry  Carleton    April-  1.   1837-Feb.   1,   1839 

Pierre  Adolphe  Rost   Mar.  4,  1839-June  30,  1839 

George  Eustis Mar.  4,  1839-May  30,  1839 

George  Strawbridge  Aug.  3,  1839-Dec.  1,  1839 

Alonzo  Morphy   Aug.   31,   1839-Mar.   19,   1846 

Edward  Simon   Jan.  1,  1840-Mar.  19,   1846 

Rice  Garland Jan.  1,  1840-Mar.  19.  1846 

Henry    Adams    Bullard    Jan.    1,    1840-Mar.    19,    1846 

George  Eustis,  C.  J Mar.  19,  1846-May  4,  1853 

Pierre  Adolphe  Rost Mar.  19,  1846-May  4.  1853 

George  Rogers  King Mar.   19,   1846-Mar.  1.  1850 

Thomas  Slidell  Mar.  19,  1846-May  4,  1853 

Isaac  T.  Preston Mar.  1,  1850-July  5,  1852 

William  Dunbar Sept.  1,  1852-May  4,  1853 

Thomas  Slidell,  C.  J May  4,  1853-June  18.  1855 

Cornelius  Voorhles May  4,  1853-April  27,  1859 

Alexander  M.  Buchanan May  4,  1853-May  6,  1862 

Abner  Nash  Ogden    May  4,  1853-June   30,   1855 

James  G.  Campbell May  4,  1853-Oct.  17.  1854 

Henry  M.   Spofford Nov.  6,   1854-Nov.   1.  1858 

Jameaf  N.  Lea July  23,  1855-April  6,  1857 

Edwin   Thomas  Merrick.   C.   J Aug.   1,    1855-April   1,    1865 

James  L.   Cole May  4,   1857-Mar.   12.   1860 

Thomas  T.  Land Nov.  1,  1858-April  1.  1865 

Albert  Voorhies May  3.  1859-April  1,  1865 

Albert  Duffel    Mar.  12,   1860-April  1,   1865 

Peter  E.  Bonford 1863 1864 

Thomas   C.   Manning 1864 1865 

William  B.  Hyman,  C.  J April  1,  1865-Nov.  1.  1868 

Zenon  Labauve April  1,  1865-Nov.  1.  1868 

John  H.  Ilsley April  1.  1865-Nov.  1.  1868 

Rufus  K.  Howell  April  1,   1865-Jan.  9,   1877 

Robert  B.  Jones April  1,  1865-July  1,   1866 

James  G.  Taliaferro July  1,  1866-Nov.  3.  1876 

John   T.  Ludeling.   C.  J Nov.   1,    1868-Jan.   9.   1877 

William  G.  Wyly Nov.   1,   1868-Nov.   3,   1876 

William  WMrt  Howe Nov.  1,  1868-Dec.  3,   1872 

John   H.  Kennard Dec.   3.   1872-Feb.   1.    1873 

Philip  Hickey  Morgan Feb.   1,  1873-Jan.  9.  1877 

John  Edwards   Leonard   Nov.   3,   1876-Jan.   9,   1877 

John  Edward   King   Jan.   9,   1877-Jan.   9.   1877 


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112 


The  Louisiana  Historical  Quarterly 


Thomas  C.  Manning,  C.  J Jan.  9,  1877-AprU  5,  1880 

Robert   Hardin  Marr Jan.   9.   1877-April   5.  1880 

Alciblades  De  Blanc Jan.  9,  1877-April  5,  1880 

William  B.  Egan Jan.  9,  1877-Nov.  30.  1878 

William  B.  Spencer Jan.  9,  1877-April  5/  1880 

Edward  Douglass  White Jan.  11,  1879-April  5.  1880 

Edward   Bermudez,   C.  J April   5.   1880-April   5,  1892 

Felix  P.  Poch6   April  5,  1880-April  5,  1890 

Robert  B.  Todd   April  5,  1880-June  11.  1888 

William  M.  Levy April  5.  1880-Nov.  5.  1882 

Charles  E.  Fenner   April   5,   1880-Sept.  1,  1893 

Thomas  C.  Manning   Dec.  1,  1882-April  19.  1886 

Lynn  B.  Watkins April  19.  1886-Mar.  2,  1901 

Samuel  Douglas  McEnery June  11,1888-Mar.  A,  1897 

Joafeph  A.  Breaux April  5,  1890-April  4,  1904 

Francis  T.  Nicholls,   C.  J April  5.  1892-April  4,  1904 

Charles  Parlange    Sept.   1,  1893-Jan.  1,  1894 

Henry  Carleton  Miller Feb.  1.  1894-Mar.  4,  1899 

Newton  Crain  Blanchard Mar.  4.  1897-Oct.  17,  1903 

Francis  T.  Nicholls April  4,  1904-Mar.  18,  1911 

Joseph  A.  Breaux,  C.  J April  5,  1904-April  5.  1914 


THE   ATTORNEYS   GENERAL. 

Francois-Xavier  Martin   1812-15 

Etienne    Mazureau    1815-17 

Louis   Moreau-Lislet    1817-18 

Thomas    Boiling    Robertson 1 819-20 

Etienne  Mazureau  1820-23 

Lsuar   T.    Preston 1823-29 

Alonzo    Morphy    1829-29 

George  Eustis   1830-32 

Etienne  Mazureau 1832-40 

Christian   Roselius    1841-42 

Lsaac  T.  Preston 1843-45 

William  A.  Elmore   1846-50 

Isaac   Johnson    1851-52 

Isaac    E.    Morse 1853-55 

E.  Warren   Moise    1855-59 

Thomas  J.   Semmes 1860-62 

F.  S.   Goode 1862-64 

Andrew   S.   Herron 1865-65 

B.  S.  Lynch 1865-67 

Simeon  Belden   1868-71 

A.  P.  Field 1872-76 

William  H.  Hunt 1876-76 

Hiram   R.   Steele 1876-76 

Horatio    N.    Ogden 1877-79 

James  C.  Egan 1880-84 

Milton  J.   Cunningham 1884-88 

Walter  Henry  Rogers 1888-92 

Milton   J.   Cunningham 1892-1900 

Walter  Guion    1900-12 

Ruffin  G.  Pleasant 1912- 

THE  REPORTERS. 

Francois-Xavier  Martin   1809-31 

Branch  W.   Miller 1831-34 

Thomas   Curry    1834-42 

Merritt    W.    Robinson 1842-52 

William   W.   King 1852-52 

William   M.   Randolph 18r.2-57 

Abner    N.    Ogden 1857-6.') 

S.    F   Glenn 1805-67 

Jacob  Hawkins 1867-73 

CharU'H    Gayarr^    1873-76 

Percy  Roberts 1877-79 

Henry  Denis    1880-95 

Walter    H.    Rogers 1895-1902 

Thomas  H.  Thorpe 1902-07 

Charles    G.    Gill 1907- 


THE  CLERKS. 
At  New  Orleans. 

R.  F.  Hamilton March  1,  1813 

Chafe*.   Derbigny June  7,   1814 

N.  N.  Le  Breton November  27,  1820 

A.  Cuvilller December  11,  1837 

Charles   Durocher July   1,   1843 

Eugene  I^sere November  26,  1845 

J.  Madison  Wells,  Jr April  3,  1865 

John  M.  Howell January  9,  1*872 

Alfred  Roman January  9,  1877 

George   W.  Dupr6 April   5,   1880 

Joseph  F.  Poch^ February  1,  1889 

Thomas  McC.  Hyman.  .January  19,  1891 
Paul  E.  Mortimer June  30,  1909 

At  Monroe. 

Henry  M.  Bry June  26,  1846 

Robert  Taylor  March  27,  1850 

Franklin  Garret   July  9,  1866 

W.  H.  Dinkgrove   July  12,  1869 

John  H.  Dinkgrove July  7,  1873 

Talbot  Stillman July  2,  1877 

Robert  J.  Wilson June  7,  1880 

At  Opelousas. 

Pierre  Labiche June  26,  1846 

(The  Court   House   and   Records 
burned  in  1886) 

Benamin  R.  Rogers 

L.   S.   Taylor    

B.  F.    Mequiley July   2,    1888 

At  Alexandria. 

William   Wilson August   2,   1813 

M.   A.  Airail June  26,   1846 

Duncan  C.  Goodwin Sept.  17,  1850 

At   Shreveport. 

S.   M.   Morrison October  11,   18S0 

P.  J.  Trezevant October  13,  1884 

William  G.  Boney October  22,  1887 

William  P.  Ford Sei)tember  20,  1890 

H.    H.    Hargrove October   9,    1893 

Note:  The  above  lists  were  prepar- 
ed as  follows:  Attorneys  General  and 
Reporters  by  William  Kernan  Dart, 
of  the  New  Orleans  bar;  (Merks.  by 
John  A.  Klotz,  dei)uty  clerk  of  the  Su- 
premo Court. 


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Centenary  of  The  Supreme  Court  113 

The  Justices  op  the  Supreme  Court. 
By  William  Kernan  Dart,  of  the  New  Orleans  Bar. 

This  list  of  the  Justices  of  the  Supreme  Court  is  arranged 
chronologically  in  the  order  of  appointment.  In  those  cases  where 
biographical  data  is  accessible,  such  information  is  given.  The 
list  includes  the  name  of  every  justice,  including  the  members  of 
the  Superior  Court  of  the  Territory  of  Orleans.  The  brackets 
after  the  names  indicate  the  term  of  service.  The  compiler  has 
gathered  this  work  from  scattered  directions,  and  in  several  cases 
has  succeeded  in  obtaining  only  fragmentary  information  owing 
to  the  chaotic  condition  of  sources. 

Ephraim  Kirby,  (1804-04) :  Born  Litchfield,  Conn.,  February 
23,  1757;  died  at  Ft.  Stoddard,  Miss.,  October  2,  1804.  Kirby 
served  through  the  Revolutionary  War,  and  was  left  for  dead 
on  the  field  at  Germantown.  He  was  graduated  from  Yale.  Served 
in  Connecticut  Legislature,  1791-1804,  and  as  United  States  Su- 
pervisor of  Revenues,  1801.  He  published  the  first  volume  of  le- 
gal reports  in  the  United  States,  those  of  Connecticut,  in  1789. 
He  was  several  times  a  candidate  for  Governor  of  Connecticut. 
Upon  the  acquisition  of  Louisiana,  Jefferson  appointed  him  a 
iudge  of  the  Territorial  Court  of  Orleans,  and  while  en  route  to 
take  his  office  he  died  at  Ft.  Stoddard,  Miss. 

John  B.  Prevost  (March,  1804-November,  1808)  :  Born  in 
1770  in  the  West  Indies,  the  son  of  a  British  officer.  His  mother 
moved  to  New  York,  and  in  1782  married  Aaron  Burr.  In  1804 
Prevost  was  a  recorder  in  New  York  City.  Jefferson  commis- 
sioned him  a  judge  of  the  new  Territorial  Court.  Arriving  in  New 
Orleans  October  29,  1804,  he  opened  the  Superior  Court  with  a 
charge  to  the  grand  jury  on  Monday,  November  5, 1804.  He  tried 
the  famous  Garcia  and  Bollman  Cases.  After  his  retirement  from 
the  bench  he  practiced  law  for  many  years  in  New  Orleans.  In 
1822  he  was  United  States  agent  to  investigate  the  rights  of  the 
rebels  in  the  Spanish  colonies.    He  died  between  1830  and  1840. 

William  Sprigg  (January  17,  1806-November,  1808)  :  Was  a 
member  of  Congress  from  Maryland,  1801-02.  In  the  latter  year 
he  moved  to  Ohio,  and  in  1806  to  Orleans. 

George  Matthews,  Jr,  {or  Mathews)  (January  19,  1806-Nov- 
ember 14,  1836) :  Born  Staunton,  Va.,  September  21,  1774;  died 
Bayou  Sara,  La.,  November  14,  1836.     His  father  was  the  Gov- 


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114  The  Louisiana  Historical  Quarterly 

emor  of  Georgia  who  signed  the  famous  Yazoo  fund  bill,  and  was 
a  Revolutionary  veteran.  He  (the  judge)  removed  to  Georgia  in 
1785,  and  was  admitted  to  the  bar  in  1799.  Appointed  by  Jeffer- 
son a  judge  of  the  Superior  Court  of  Mississippi  in  1805,  and  in 
the  following  year  was  transferred  to  Orleans.  In  1813  he  became 
presiding  judge  of  the  court,  and  remained  such  until  his  death. 
He  learned  the  civil  law  after  ascending  the  bench.  He  left  a  very 
large  fortune  at  his  death,  and  his  will  was  successfully  attacked ; 
one  of  its  dispositions  being  annulled  by  the  Supreme  Court. 

Joshua  Lewis  (November  10, 1806-March  1, 1813) :  Born  Jes- 
samine county,  Va.,  June  5,  1773,  died  at  New  Orleans,  1833. 
Emigrated  to  Kentucky  and  was  a  political  advisor  of  Henry  Clay. 
Was  one  of  the  three  commissioners  whom  Jefferson  appointed 
to  take  charge  of  Louisiana.  Was  a  member  of  the  Kentucky 
Legislature.  After  his  retirement  from  the  Superior  Court  bench, 
he  became  judge  of  the  Fourth  District  Court,  which  position  he 
held  from  1813  to  his  death.  Defeated  for  Governor  of  Louisiana 
in  1816  by  Jacques  Villere.  Was  a  lieutenant  at  the  Battle  of  New 
Orleans,  although  he  occupied  a  judicial  position.  Left  a  large 
family. 

John  Thompson  (November  14,  1808-February,  1810) :  Died 
in  New  Orleans  in  1810,  and  was  succeeded  by  F.-X.  Martin. 

FranfoiS'Xavier  Martin  (March  21,  1810-March  1,  1813; 
February  1,  1815-March  19,  1846) :  Born  Marseilles,  France, 
March  17,  1764;  died  New  Orleans,  December  11,  1846.  At  18 
he  emigrated  to  Martinique,  and  from  there  he  went  in  1786  to 
New  Bern,  N.  C.  Learned  English  by  typesetting  as  a  printer. 
Printed  a  number  of  books,  and  a  daily  paper  in  North  Carolina. 
He  was  admitted  to  the  bar  in  1789.  Issued  a  digest  of  North 
Carolina  cases  and  laws,  and  translated  Pothier  on  Obligations. 
Author  of  History  of  North  Carolina  (1806-07),  Martin's  Lou- 
isiana Digest,  Martin's  History  of  Louisiana.  Was  a  member  of 
the  North  Carolina  Legislature.  Appointed  in  1809  a  judge  of  the 
Mississippi  territory,  and  in  1810  was  transferred  to  Orleans. 
From  February,  1813,  to  January,  1815,  was  Attorney  General  of 
Louisiana,  and  was  reappointed  to  the  bench  that  year.  Left  a 
large  estate ;  his  will  was  unsuccessfully  attacked  on  the  grounds 
of  fraud.  He  was  a  brilliant  and  learned  judge.  His  latter  years 
on  the  bench  were  marred  by  total  blindness,  and  certain  dis- 
agreeable personal  eccentricities. 


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Centevary  of  The  Supreme  Court  115 

Dominick  Augustin  Hall  (March  1,  1813-July  1,  1813) :  Born 
South  Carolina,  1765;  died  in  New  Orleans,  December  12,  1820. 
Practiced  law  in  Charleston.  U.  S.  District  Judge,  Orleans,  1803- 
12.  Resigned  to  become  state  judge,  and  four  months  later  re- 
appointed federal  district  judge.  As  such  he  fined  General  An- 
drew Jackson  $1,000  for  contempt  of  court  during  the  Battle 
of  New  Orleans.  This  fine  was  repaid  with  interest  by  Congress 
in  1844. 

Pierre  Auguste  Charles  Bourisgay  Derbigny  (March  1,  1813- 
December  15,  1820) :  Born  in  Laon,  Lille,  Department  du  Nord, 
France,  1767 ;  died  Gretna,  La.,  October  6, 1829.  He  was  descend- 
ed from  a  French  noble  family  which  was  compelled  to  migrate 
in  1793.  He  first  went  to  St.  Domingo,  and  thence  to  Pittsburg, 
Pa.  At  the  latter  place  he  married  the  sister  of  the  French  Gov- 
ernor, and  then  moved  in  succession  to  Missouri,  Florida,  and  Lou- 
isiana. In  1803  he  was  private  secretary  to  Etienne  Bor6,  mayor 
of  New  Orleans ;  in  the  same  year  Governor  Claiborne  appointed 
him  official  interpreter  of  languages  for  the  territory.  He  deli- 
vered the  first  Fourth  of  July  oration  in  the  territory  in  1804. 
Clerk  of  court  of  common  pleas,  1804;  secretary  of  legislative 
counsel,  same  year.  Member  of  first  Louisiana  House  of  Represen- 
tatives, 1812,  but  resigned  to  become  judge.  His  nomination  was 
first  rejected  by  the  Senate,  but  was  afterwards  returned  and  con- 
firmed at  the  Senate's  request.  He  retired  from  the  bench  to  run 
for  Govrnor,  and  was  defeated  by  T.  B.  Robertson.  Secretary  of 
State  of  Louisiana,  1820-27.  Appointed  with  Livingston  and  Mo- 
reau  to  revise  the  Civil  Code  in  1820.  In  1828  he  was  elected 
Governor,  and  was  killed  by  being  thrown  from  his  carriage 
against  a  tree  the  following  year.  He  was  a  prime  factor  in  ob- 
taining the  admission  of  Louisiana.  He  also  ran  the  first  ferry 
across  the  Mississippi  at  New  Orleans. 

Alexander  Porter,  Jr.  (January  2,  1821-December  16,  1833) : 
Born  Armagh  county,  Tyrone,  Ireland,  1786 ;  died  Attakapas,  La., 
January  13,  1844.  His  father,  a  Presbyterian  clergyman,  was 
executed  in  Ireland  as  an  English  spy  in  1798,  and  the  orphan 
thereupon  came  to  America  with  his  uncle  in  1801.  He  settled  at 
Nashville,  and  on  the  advice  of  Andrew  Jackson  moved  to  Lou- 
isiana. Admitted  to  the  bar  in  1807.  Member  of  the  Constitu- 
tional Convention  of  1812.  Elected  to  United  States  Senate,  1833, 
serving  until  1837.    Voted  as  a  senator  to  censure  Jackson  for 


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116  The  Louisiana  Historical  Qicarterly 

removing  deposits,  and  favored    Texan    Independence-     Again 
elected  United  States  Senator  in  1843,  and  died  in  office. 

Henry  Adams  Bullard  (February  4,  1834-February  1,  1839; 
January  1,  1840-March  19,  1846) :  Born  Groton,  Mass..  Septem- 
ber 9,  1788 ;  died  New  Orleans,  April  17,  1851.  He  was  graduated 
from  Harvard  in  1807.  Shortly  thereafter  he  joined  General  To- 
ledo to  start  a  revolution  in  Mexico,  and  spent  the  winter  of  1812 
as  his  aide  at  Nashville.  In  the  spring  of  1813,  he  went  to  New 
Mexico,  and  was  defeated  by  the  royal  troops  in  a  pitched  battle 
at  San  Antonio.  After  severe  hardships  he  reached  Natchitoches, 
and  started  to  practice  law.  In  1822  he  was  elected  to  the  district 
bench,  and  to  Congress  in  1833,  from  which  he  retired  to  become 
Justice.  Became  Secretary  of  State  of  Louisiana  in  1839,  and  the 
following  year  returned  to  the  bench.  In  1847  he  became  Profes- 
sor of  Civil  Law  at  the  University  of  Louisiana.  Served  a  term 
in  the  Legislature,  and  a  few  weeks  later  was  re-elected  to  Con- 
gress. After  one  year  of  Congress,  he  fell  ill  because  of  the  hard- 
ships of  the  return  journey,  and  died.  He  was  the  first  president 
of  the  Louisiana  Historical  Association. 

Henry  Carleton  (April  1,  1837-February  1,  1839)  :  Born  in 
Virginia  about  1785;  died  at  Philadelphia,  March  28,  1863.  His 
family  name  was  originally  Coxe.  He  was  graduated  from  Yale 
in  1806;  he  moved  to  Mississippi,  and  then  to  New  Orleans  in 
1814.  He  served  at  the  Battle  of  New  Orleans  as  a  lieutenant 
of  infantry  under  Jackson.  With  Moreau-Lislet  he  published  a 
translation  of  the  Partidas.  He  was  United  States  district  at- 
torney in  1832,  and  then  became  Justice.  He  resigned  from  the 
bench  because  of  ill  health,  traveled  about  Europe,  and  on  his  re- 
turn settled  in  Philadelphia,  where  he  devoted  himself  to  biblical, 
metaphysical,  and  philosophical  studies.  Published  Liberty  and 
Necessity  (1857),  and  an  Essay  on  Will  (1863).  Adhered  to  the 
Union  during  the  war. 

Pierre  Adolphe  Rost  (March  4,  1839-June  30,  1839;  March 
19,  1846-May  4,  1853)  :  Born  in  Garonne,  France,  1797;  died  at 
New  Orleans,  September  6,  1868.  Took  part  in  the  defense  of 
Paris,  1814,  and  then  became  a  member  of  Napoleon's  army.  Emi- 
grated in  1816  to  America,  landing  at  Natchez,  Miss.  Subse- 
quently removed  to  Louisiana.  State  Legislature,  1822.  Selected 
the  name  for  Lafayette  parish  when  it  was  created.  Defeated  for 
Congress.    Appointed  to  the  supreme  bench  in  1839,  and  served 


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Centenary  of  The  Supreme  Court  117 

a  few  months.    Again  appointed  under  the  Constitution  of  1845. 
During  the  Civil  War  was  a  Confederate  Commissioner  to  Spain. 

George  Eustis  (March  4,  1839-May  30,  1839;  December  1, 
1839;  March  19,  1846-May  4,  1853) :  First  Chief  Justice.  Bom 
Boston,  Mass.,  October  20,  1796 ;  died  New  Orleans,  December  22, 
1858.  Was  graduated  from  Harvard,  1815.  Served  as  private 
secretary  to  Governor  William  Eustis,  who  was  then  Minister  to 
The  Hague.  Studied  law  there,  and  moved  to  New  Orleans  in 
1817.  Admitted  to  the  bar  in  1822.  Served  several  terms  in 
liegislature.  Secretary  of  State,  Commissioner  of  the  Board  of 
Currency.  Attorney  General  of  Louisiana,  member  of  the  Conven- 
tion of  1845.  Became  first  Chief  Justice  of  Louisiana  under  the 
Convention  of  1845.  Had  previously  been  Associate  Justice,  and 
had  declined  a  reappointment  as  such  in  December,  1839.  LL.  D., 
Harvard. 

George  Strawbridge  (August  31,  1839-December  1,  1839) : 
A  native  of  Maryland.  After  he  retired  from  the  supreme  bench, 
he  became  judge  of  the  Fourth  District  Court,  serving  1846-53. 
Ran  for  Associate  Justice  in  1853,  but  was  defeated  for  election. 

Alonzo  Morphy  (August  31,  1839-March  19,  1846) :  Born 
Charleston,  S.  C. ;  died  New  Orleans,  1856.  Moved  to  Louisiana, 
and  studied  law  under  Livingston.  Member  of  Legislature,  and 
Attorney  General  of  the  state.  He  was  the  father  of  Paul  Mor- 
phy. chess  player. 

Edward  Simon  (January  1,  1840-March  19,  1846) :  Born 
May  26,  1799,  Tournay*  Haynaut,  Belgium.  Studied  at  Univer- 
sity of  Louvain,  and  studied  civil  law  at  Brussels.  Emigrated  to 
London  in  1817,  and  from  there  to  Baltimore,  where  he  went  into 
the  cotton  business.  Moved  to  Louisiana,  settling  at  St.  Martins- 
ville. After  retirement  from  bench,  became  a  sugar  planter.  Died 
between  1860  and  1870. 

Rice  Garland  (January  1,  1840-March  19,  1846) :  A  native 
of  Virginia.  Member  of  Congress,  1834-40.  Died  about  1861  in 
Texas. 

George  Rogers  King  (March  19,  1846-March  1,  1850) :  Born 
in  St.  Landry  parish.  La.,  1807;  died  there  March  21,  1871.  Was 
graduated  from  University  of  Virginia.  Served  successively  as 
state  legislator,  district  attorney,  district  judge,  and  Associate 
Justice. 


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118  The  Louisiana  Historical  Quarterly 

Thomas  Slidell  (March  19,  1846-May  4.  1853;  May  4,  1853- 
July,  1855) :  Second  Chief  Justice.  Born  in  New  York,  1805, 
died  there  1860.  Educated  at  Yale,  and  in  Spain.  Wrote  a  Year 
in  Spain,  and  author  of  A  Digest  of  Supreme  Court  Decisions, 
with  J.  P.  Benjamin.  Was  elected  Chief  Justice,  his  opponent  be- 
ing Christian  Roselius,  under  the  Constitution  of  1852,  and  at  the 
election  was  assaulted  by  a  ruffian.  This  assault  affected  his  brain, 
and  caused  his  retirement  from  the  bench. 

Isaac  Trimble  Preston  (March  1,  1850-July  5,  1852) :  Born 
Rockbridge  county,  Va.,  1793;  died  on  Lake  Pontchartrain,  La., 
July  5,  1852.  Was  graduated  from  Yale  in  1812,  and  was  captain 
of  a  volunteer  company  during  the  War  of  1812.  Studied  law  un- 
der William  Wirt.  Member  of  the  Constitutional  Convention  of 
1845.  Was  killed  by  a  steamboat  disaster  while  returning  from  a 
pleasure  trip. 

William  Dunbar  (September  1,  1852-May  4,  1853) :  Served 
in  Congress  from  1853  to  1855. 

Cornelius  Voorhies  (May  4,  1853-April,  1859) :  Of  Dutch 
descent.  Born  Avoyelles  parish,  1803.  Died,  1859.  District  At- 
torney, State  Senator,  District  Judge,  and  Supreme  Court  Justice. 
His  son  succeeded  him  on  the  bench. 

Alexander  M.  Buchanan  (May  4,  1853-1862) :  Judge  of  the 
Fourth  District  Court  before  his  ascension  to  the  bench. 

Abner  Nash  Ogden  (May  4, 1853-July,1855) :  Declined  a  seat 
on  the  federal  bench  at  one  time. 

James  G.  Campbell  (May  4,  1853-1855). 

Henry  Martyn  Spofford  (1854-November  1,  1858) :  Bom 
Germanton,  N.  H.,  September  8,  1821 ;  died  Red  Sulphur  Springs, 
W.  Va.,  August  20,  1880.  Was  graduated  from  Amherst  in  1840 
at  the  head  of  his  class.  Admitted  to  bar  at  Monroe,  La.,  1846, 
and  practiced  at  Shreveport,  La.  District  Judge,  1852-54.  Re- 
signed from  Supreme  Court  in  1858.  After  the  war  was  in  part- 
nership with  John  A.  Campbell,  Ex  Justice  of  the  United  States 
Supreme  Court.  Elected  to  the  United  States  Senate  in  1877,  but 
the  Senate  seated  his  opponent.  LL.  D.,  Amherst,  1877.  Co-author 
of  Louisiana  Magistrate. 

James  Neilson  Lea  (July,  1855-1858) :  Born  at  Baton  Rouge, 
La.,  November  26, 1815;  died  at  Lexington,  Va.,  October  29,  1884. 
Was  graduated  from  Yale  in  1834.    Judge  of  Second  District 


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Centenary  of  The  Supreme  Court  119 

Court,  1849-55.    After  war  became  Professon  of  Civil  Law  at 
Washington  and  Lee  College. 

Edwin  Thomas  Merrick  (July,  1885-April  3,  1865) :  Third 
Chief  Justice.  Bom  in  Massachusetts,  1810;  died  in  New  Orleans, 
1897.  Moved  to  Ohio,  and  then  to  Clinton,  La.,  where  he  was  a 
District  Judge  until  elected  Chief  Justice.  He  was  noted  for  his 
erudition. 

James  L.  Cole  (April  6,  1857-March  12,  1860;  1863-65): 
When  the  Federals  attempted  to  reorganize  the  Judiciary  he  was 
appointed  to  his  former  position,  but  the  court  never  as  a  fact 
organized. 

Thomas  Thompson  Land  (November  1,  1858- April  3,  1865) : 
Born  Rutherford  county,  Va.,  December  17,  1815 ;  died  Shreve- 
port,  La.,  June  27,  1893."  With  his  parents  he  moved  first  to  Ala- 
bama, and  then  to  Mississippi.  Was  graduated  from  the  Univer- 
sity of  Virginia.  A  member  of  the  Mississippi  Legislature  in 
1839.  Moved  to  Shreveport  in  1846.  Judge  of  the  District  Court, 
1854-58.  Member  of  the  Convention  of  1879,  where  he  was  chair- 
man of  the  judiciary  committee.  He  was  the  father  of  Justice 
Alfred  D.  Land. 

Albert  Voorhies  (April  1859.April  1865) :  Born  St.  Fran- 
cisville,  La.,  1829 ;  died  New  Orleans,  January,  1913.  Son  of  Judge 
Cornelius  Voorhies.  After  the  war  he  became  Lieutenant  Gov- 
ernor of  Louisiana,  1865-68,  and  subsequently  served  as  a  District 
Judge  in  New  Orleans. 

Albert  Duffel  (March  12,  1860- April,  1862). 

Pierre  Emile  Bonford  (1863- August  17, 1864) :  Appointed  by 
the  Confederate  State  Government,  and  served  until  his  death  at 
Alexandria,  La.,  Aug.  17, 1864. 

Thomas  Courtland  Manning  (1864-65; January  9,  1877- April 
5,  1880;  December  1,  1882-April  19,  1886) :  Sixth  Chief  Justice. 
Born  at  Edenton,  N.  C,  1831 ;  died  New  York  City,  October  11, 
1887.  Was  graduated  from  the  University  of  North  Carolina. 
Removed  to  Alexandria,  La.,  1855.  Member  of  Secession  Conven- 
tion of  1861.  Served  in  the  war  as  a  Lieutenant-Colonel  and  Bri- 
gadier-General of  the  Confederacy,  retiring  to  succeed  Bonford 
as  Justice  in  1864.  He  declined  Democratic  nominations  for  Gov- 
ernor in  1872,  and  for  presidential  elector.  He  was  a  vice-presi- 
dent of  the  Tilden  nominating  convention.  In  1880,  he  was 
Democratic  presidential  elector,  and  in  the  same  year  was  ap- 


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120  The  Louisiana  Historical  Qicarterly 

pointed  United  States  Senator,  but  was  not  admitted.  He  was 
named  Chief  Justice  when  the  Democrats  regained  control  of  the 
state  government.  In  1882  he  was  appointed  Associate  Justice. 
From  1886  until  he  died  he  was  United  States  Minister  to  Mexico. 

Charles  A.  Peabody  (1863-65) :  Provisional  Judge  of  Lou- 
isiana during  the  war.  He  was  commissioned  Chief  Justice  of 
Louisiana  by  the  Federal 'State  Government,  and  dr6w  a  salary, 
but  never  heard  a  case. 

John  S.  Whittaker  (1863-65) :  He  was  commissioned  an  As- 
sociate Justice  by  the  Federal  State  Government,  but  never  served. 
He  was  born  in  Massachusetts,  March  8,  1817,  and  died  about 
1897.  He  served  as  Criminal  District  Judge  of  New  Orleans 
during  the  latter  part  of  the  war  period. 

William  B.  Hyman  (April  3, 1865-November  1, 1868) :  Fourth 
Chief  Justice.  Born,  Marion  county,  N.  C,  1814;  died  in  1884. 
Moved  to  Alexandria,  La.,  about  1840.  Parish  judge,  Rapides, 
1865-69.  After  his  retirement  from  the  Supreme  Bench  became 
parish  judge  of  Jefferson,  and  later  parish  surveyor. 

Zenon  Labauve  (April  3,  1865-November  1,  1868) :  Born  in 
West  Baton  Rouge,  February  16,  1801 ;  died  in  Iberville  parish, 
1870.  State  Senator,  1834-36, 1842-43.  Member  of  Constitutional 
Convention  of  1845.   State  Senator,  1851.    Justice,  1865-68. 

John  Henry  Ilsley  (April  3,  1865-November  1,  1868) :  Bom 
June  22,  1806,  London,  Eng.;  died  Donaldsonville,  La.,  May  9, 
1880.  Was  graduated  from  Oxford  University,  and  emigrated  to 
America  when  19.  Taught  school  until  admitted  to  bar.  Several 
sons  served  in  the  Confederate  Army. 

Rufus  K.  Howell  (April  3,  1865-January  9,  1877). 

Robert  Byron  Jones  (May  1,  1865-July  1,  1866).  Born  in 
Florida,  in  1833.    Died  July  20,  1867,  at  New  Orleans. 

James  G.  Taliaferro  (July  1,  1866-November  3,  1876) :  Born 
Amherst  county,  Va.,  1798;  died  Catahoula  parish,  1876.  Educat- 
ed Transylvania  University,  Ky.  Member  of  Secession  Conven- 
tion, 1861,  but  voted  against  secession  and  remained  a  Union  man. 
Of  Italian  descent.  Moved  to  Louisiana  in  1814.  Parish  judge, 
1840.  Member  of  the  Constitutional  Conventions  of  1852  and 
1868. 

John  T.  Ludeling  (November  1, 1868- January  9, 1877) :  Fifth 
Chief  Justice.    Born  in  Monroe,  La.,  1822.  Died  January,  1890. 


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Centenary  of  The  Supreme  Court  121 

William  Gillespie  Wyly  (November  1,  1868-November  3, 
1876) :  Born  Greenville,  Tenn.,  February,  1831 ;  died  on  S.  S.  St. 
Louis  en  route  from  Liverpool  to  New  York,  September  25,  1903. 
Was  graduated  from  Jefferson  College.  In  1868  elected  a  District 
Judge,  but  resigned  shortly  thereafter  to  become  Supreme  Court 
Justice. 

William  Wirt  Hoive  (November  1,  1868-December  3,  1872) : 
Born  Canandaigua,  N.  Y.,  November  24,  1833;  died  at  New  Or- 
leans, 1911.  Was  graduated  from  Hamilton  College.  Major  in 
United  States  army  during  the  war.  Served  one  year  as  presi- 
dent of  the  American  Bar  Association.  Published  Studies  in  Civil 
Law.  Judge  of  Criminal  District  Court,  1868,  which  he  resigned 
to  become  Associate  Justice.  United  States  District  Attorney, 
1905-09. 

John  H.  Kennard  (December  3,  1872-February  1,  1873)  : 
Died  at  New  Orleans,  May  2,  1887.  Was  appointed  to  the  bench, 
and  unseated  after  a  brief  service,  being  succeeded  by  Morgan. 

Philip  Hickey  Morgan  (February  1,  1873- January  9,  1877)  : 
Born  Baton  Rouge,  La.,  November  9,  1825;  died  about  1892.  Dis- 
trict Judge,  1855-61.  United  States  District  Attorney,  1866-73. 
United  States  Representative  on  International  Tribunal  at  Egypt, 
1881-85.    Subsequently  United  States  Minister  to  Mexico. 

John  Edwards  Leonard  (November  3,  1876- January  9, 
1877) :  Born  at  Chester  county.  Pa.,  September  22,  1845;  died  at 
Havana,  Cuba,  March  15, 1878.  Was  graduated  from  Harvard  and 
from  Heidelberg.  Moved  to  Louisiana,  where  he  became  District 
Attorney,  and  subsequently  Justice.  Elected  to  Congress  in  1876. 

John  Edward  King  (January  9,  1877- January  9,  1877)  :  Ap- 
pointed by  Governor  Packard  to  succeed  Judge  Wyly.  He  served 
one  day  only ;  the  court  being  turned  out  of  office  by  the  Demo- 
crats on  that  day. 

Robert  Hardin  Marr  (January  9,  1877-April  5,  1880) :  Born 
Clarksville,  Tenn.,  October  29,  1819.  Presidential  Elector  on  Bell 
ticket  in  1860.  Judge  of  Criminal  District  Court.  Died  in  New 
Orleans,  November  18,  1892. 

Alcibiade  De  Blanc  (January  9,  1877-April  5,  1880) :  Mem- 
ber Secession  Convention  of  1861.  Colonel  of  C.  S.  A.  Died  at  St. 
Martinsville,  La.,  November  9, 1883. 

William  B.  G.  Egan  (January  9,  1877-November,  1878) : 
A  native  of  Virginia.   Died  at  New  Orleans,  November  1878. 


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122  The  Louisiana  Historical  Quarterly 

William  B.  Spencer  (January  9,  1877-April  5,  1880) :  Born 
Catahoula  parish,  La.,  February  5, 1835 ;  died  at  Cordova,  Mexico, 
April  29,  1882.  Member  of  Congress,  May  31,  1876-January  8, 
1877. 

Edward  Douglass  White  (January  1879- April  5, 1880) :  Born 
Lafourche  parish.  La.,  November  3,  1845.  Was  graduated  from 
Georgetown  (D.  C).  Served  in  Confederate  Army.  State  Sena- 
tor, 1874.  United  States  Senator,  1891-94.  Associate  Justice 
United  States  Supreme  Court,  February  19,  1894-December  12, 
1910.  Since  the  latter  date  he  has  been  Chief  Justice  of  the  United 
States. 

Edward  Bermudez  (April  5,  1880- April  5,  1892)  :  Seventh 
Chief  Justice.  Born  New  Orleans,  January  19,  1832 ;  died  there 
August  22,  1892.  Member  Secession  Convention  of  1861.  Served 
in  Confederate  Army.   Assistant  City  Attorney,  1866. 

Felix  Pierre  Poche  (April  5,  1880-ApriI  5,  1890) :  Born  St. 
James  parish,  May,  18,  1836;  died  at  New  Orleans,  June  21,  1895. 
Served  in  Confederate  Army.    State  Senator,  1866. 

Robert  Burr  Todd  (April  5,  1880.June  11,  1888)  :  Died  at 
Brooklyn,  N.  Y.,  February  4,  1901. 

William  Mallary  Levy  (April  5,  1880-November  5,  1882)  : 
Born  Isle  of  Wight  county,  Va.,  October  30,  1827 ;  died  Saratoga, 
N.  Y.,  November  5,  1882.  Served  in  Mexican  War,  and  in  Con- 
federate Army.  State  Representative,  1859-61 ;  Democratic  Presi- 
dential Elector,  1860.  Congressman,  1875-77. 

Charles  Erasmus  Fenner  (April  5, 1880-September  1, 1893) : 
Born  at  Jackson,  Tenn.,  February  14,  1834 ;  died  at  New  Orleans, 
October  24,  1911.  Served  in  Confederate  Army.  President  of 
Tulane  Educational  Fund,  and  of  Boston  Club.  Noted  as  orator. 

Lynn  Boyd  Watkins  (April  19,  1886-March  2,  1901) :  Born 
Caldwell  county,  Ky.,  October  9, 1836 ;  died  at  New  Orleans,  March 
2,  1901.    Served  in  Confederate  Army.  District  Judge,  1871. 

Samuel  Douglas  McEnery  (June  11,  1888-March  4,  1897) : 
Born  Monroe,  La.,  May  28,  1837;  died  at  New  Orleans,  June  28, 
1910.  Was  graduated  from  the  Naval  Academy,  and  the  Univer- 
sity of  Virginia.  Served  in  Confederate  Army.  Lieutenant  Gov- 
ernor of  Louisiana,  1879-81;  Governor,  1881-88.  Defeated  for 
Governor  in  1892.  Elected  United  States  Senator  in  1897,  and 
served  till  he  died. 


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Centenary  of  The  Supreme  Court  123 

Joseph  A.  Breaux  (April  5,  1890- April  4,  1904;  April  4, 
1904-April  3,  1914) :  Ninth  Chief  Justice.  Born  February  18, 
1838.  Served  in  Confederate  Army.  Served  as  Associate  Justice 
from  1890  to  1904,  when  he  became  Chief  Justice.  Compiler  of 
Breaux's  Digest. 

Francis  Tillou  Nicholls  (April  5,  1892- April  4,  1904;  April 
4,  1904-March  18,  1911):  Born  Donaldsonville,  La.,  1834;  died 
there  January  4,  1912.  Was  graduated  from  West  Point  in  1855, 
served  one  year  in  regular  army.  Lost  an  eye,  foot,  and  arm  in 
Civil  War,  becoming  a  Major  General  of  Confederate  Army.  Gov- 
ernor of  Louisana,  1876-79,  overthrowing  Republican  rule.  Again 
Governor,  1888-92,  overthrowing  lottery.  Chief  Justice,  1892- 
1904,  when  he  became  Associate  Justice.  Retired  on  a  pension 
in  1911,  being  the  first  judge  in  Louisiana  to  retire  on  a  pension. 

Charles  Parlange  (September  1,  1893-January  1,  1894)  : 
Born  Pointe  Coupee,  La.,  1852;  died.  New  Orleans,  February  5, 
1907.  Member  Constitutional  Convention  of  1879.  State  Senator, 
United  States  District  Attorney,  Lieutenant  Governor.  Retired 
from  Supreme  Court  to  become  Federal  District  Judge,  a  position 
he  occupied  until  his  death. 

Henry  Carleton  Miller  (February  1,  1894-March  4,  1899) : 
Bom  Covington,  La.,  February  1,  1828;  died  at  New  Orleans, 
March  4, 1899.  United  States  District  Attorney,  1856-61 ;  C.  S.  A. 
District  Attorney,  1861-65.    Dean  of  Tulane  Law  School. 

Newton  Crain  Blanchard  (March  4,  1897-October  17,  1903) : 
Born  Rapides  parish,  January  29,  1849.  Was  graduated  from 
Louisiana  State  University.  Member  Constitutional  Convention 
of  1879.  Congressman,  1881-93;  United  States  Senator,  1893-97. 
Governor,  1904-08.    Now  practicing  law  at  Shreveport. 

Frank  Adair  Monroe  (March  22,  1899 ) :  Born  at  Annap- 
olis, Md.,  August  30,  1844.  Served  in  Confederate  Army.  Serv- 
ed a  month  as  Judge  of  Third  District  Court  in  1872,  when  he  was 
dispossessed.  Served  in  White  League.  Re-elected  Judge,  1876. 
Judge  Civil  District  Court,  1880-99.  Member  Constitutional  Con- 
vention of  1898.  Will  succeed  Judge  Breaux  as  Chief  Justice  in 
April,  1914. 

Olivier  O.  Provosty  (March  16,  1901-^ — ) :  Born  Pointe 
Coupee,  La.,  August  2,  1852.  Educated  at  Georgetown  Univer- 
sity. District  Attorney,  1873-76.  Louisiana  State  Senate,  1888-92. 


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124  The  Louisiana  Historical  Quarterly 

Member  of  Constitutional  Convention,  1898.  Referee  in  bank- 
ruptcy, 1898-1901. 

Alfred  Dillingham  Land    (October   17,    1903 ) :    Born 

Holmes  county.  Miss.,  January  15,  1842.  Son  of  Justice  T.  T. 
Land.  Served  in  Confederate  Army.  District  Judge,  1894-1903. 

Walter  Byers  Sommerville    (March  18,    1911 ) :    Bom 

October  7,  1854,  at  New  Orleans,  La.  Prior  to  his  present  eleva- 
tion he  was  Assistant  City  Attorney,  and  Judge  of  the  Civil  Dis- 
trict Court. 

Luther  Egbert  Hall  (April  5,  1912-April  5,  1912) :  was 
elected  Justice,  but,  having  been  elected  Governor  of  Louisiana, 
never  took  his  seat.  Judge  Land  was  subsequently  re-elected  to 
fill  this  vacancy. 

Charles  A.  O'Niell  (April  4,  1914 ) :  Has  been  elected  to 

the  vacancy  created  by  Justice  Breaux's  retirement,  and  will  take 
his  seat  on  the  above  date. 


INVITATIOX 

1813  1913 

The  Centenary 

of  the 

Supreme  Court  of  Louisiana. 

The  Chief  Juaftice 

and  the  Associate  Justices  of  the 

^preme  Court  of  Louisiana 

Invite  you  to  participate  in  the  celebration  of  the 

One  Hundredth  Anniversary  of  the  Organization  of 

The  Supreme  Court  of  Louisiana 

to  be  held  In  the  Court  Room 

Saturday  morning,  March  the  first, 

nineteen  hundred  and  thirteen. 

at  eleven  o'clock, 

New  Orleans,  Louisiana. 


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YE  CLDEN  TYME 


{From  Grace  King's  Scrap  Book) 

The  records  on  file  at  the  Custom  House  pertaining  to  the  pur- 
chase of  Louisiana  by  this  government  disclose  a  decidedly  unsatis- 
factory and  unencouraging  condition  of  affairs  in  the  new  territory 
during  the  period  from  1803  to  1805.  The  situation  was  abnormal 
and  feverish.  Smuggling  was  general,  **fraud  was  fashionable,"  the 
customs  regulations  were  more  honored  in  the  breach  than  in  the 
observance,  and  a  feeling  of  discontent  among  the  natives  was  every- 
where prevalent.  All  this,  however,  was  known  to  the  United  States 
government;  and  in  order  to  more  effectually  counteract  these  evil 
tendencies  President  Jefferson  instituted  a  policy  of  conciliation  to  be 
applied  exclusively  to  the  newly  purchased  territory  of  Louisiana 
and  its  people. 

The  hundreds  of  letters  written  by  Albert  Gallatin  to  Hare 
Browse  Trist,  then  collector  of  the  port  of  New  Orleans,  were  unre- 
mitting in  their  recommendations  of  a  line  of  conduct  having  for  its 
purpose  the  propitiation  and  pacification  of  the  disaffected  natives. 
This  rule  extended  to  all  persons  coming  into  contact  or  having  any 
dealings  whatever  with  the  Federal  government  in  Louisiana.  The 
good  results  of  this  policy  were  not  apparent  until  the  latter  part  of 
Mr.  Jefferson's  first  term  of  office,  when  conditions  began  to  be  nor- 
mal and  the  laws  were  being  enforced — not  rigidly,  but  with  a  liber- 
ality of  construction  that  made  them  acceptable  to  the  better  classes, 
especially  the  business  element.  For  the  largeness  of  spirit  with  which 
the  affairs  of  the  national  government  were  administered  in  Louis- 
iana the  letters  of  Mr.  Gallatin  are  profuse  in  their  compliments  to 
the  collector  of  the  port,  Mr.  Trist,  whose  authority  at  that  time  ex- 
tended over  such  a  vast  area  of  new  country. 

Hare  Browse  Trist  was  the  son  of  Nicholas  Trist,  a  lieutenant 
in  the  Royal  Irish  Regiment.  Lieut.  Trist  married  Elizabeth  House 
of  Philadelphia,  and  H.  B.  Trist,  the  first  collector  of  the  port  of  New 
Orleans  after  the  purchase  of  Louisiana  by  the  United  States  govern- 
ment, was  the  only  son  of  this  marriage.  He  was  born  in  Phila- 
delphia, February  22,  1775.  At  the  time  of  the  purchase  of  Louisiana 
Mr.  Trist  was  United  States  collector  of  customs  at  Port  Gibson, 
Miss.,  and  when  the  sale  of  the  new  territory  was  effected  he  was 
transferred  to  New  Orleans.  He  died  of  yellow  fever  within  a  year 
of  the  expiration  of  his  term  of  office,  but  only  after  he  had  practi- 


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126  The  Louisiana  Historical  Quarterly 

cally  completed  the  great  work  intrusted  to  him  of  pacifying  and 
establishing  law  and  order  in  Louisiana.  His  direct  descendants 
are  N.  B.  Trist,  the  well-known  notary  in  this  city;  N.  P.  Trist, 
and  Mrs.  R.  C.  Woods,  grandchildren  of  H.  B.  Trist.  H.  B.  Trist 
had  two  sons,  the  elder  of  whom,  Nicholas,  made  the  treaty  of  peace 
with  Mexico.  The  Trist  family,  who  originally  came  from  Devon- 
shire, England,  are  connected  by  marriage  with  the  family  of  Thomas 
Jefferson. 

An  interesting  feature  of  the  letter  of  Mr.  Gallatin  given  below 
is  its  reference  to  the  'Tourche,"  a  stream  which  we  know  today  as 
the  **Lafourche."  Col.  Lewis  Guion,  speaking  of  this  stream  yester- 
day, said  that  the  Lafourche  empties  into  the  Gulf  of  Mexico  at  two 
different  points,  and  it  is  from  this  fact  that  it  derives  its  name, 
meaning  two-forked.  Col.  Guion  had  always  understood  that  in  the 
early  history  of  Louisiana  levees  were  unnecessary  along  the  banks 
of  the  bayou,  and  that  it  was  navigable  for  many  miles  for  the  largest 
sailing  vessels.  Now,  however,  the  mouth  of  the  bayou  has  become 
shoal  and  there  are  periods  of  the  year  when  very  few,  if  any,  boats 
can  enter. 

The  letter  given  below  was  written  April  9,  1804,  by  Treasurer 
Gallatin,  to  Mr.  Trist,  the  collector  of  the  port  of  New  Orleans. 


**Hare  Browse  Trist: 

"Dear  Sir: — You  will  herein  receive  a  newspaper  containing 
an  act  for  imposing  more  specific  duties  after  the  30th  day  of  June 
next.  A  section  has  been  introduced  in  that  law  for  the  purpose  of 
remedying  any  inconvenience  which  might  arise  at  New  Orleans 
in  revenue  cases  from  the  want  of  a  District  Court,  and  of  relieving 
merchants  and  others  there  from  any  delays  in  the  remission  of  fines, 
forfeitures  and  penalties  incurred  on  account  of  more  deviations  from 
forms.  On  that  subject  the  statute  speaks  for  itself.  It  is  the  duty 
of  the  Secretary  of  the  Treasury,  under  the  act,  to  provide  for  investi- 
gating or  remitting  the  forfeitures,  penalties  and  disabilities  occur- 
ring in  certain  cases  therein  mentioned,  passed  3rd  March,  1797, 
and  rendered  perpetual  by  a  subsequent  law,  to  mitigate  or  remit 
the  penalty  or  remove  the  disability,  if  the  same  shall  have  been 
incurred  without  willful  negligence  or  intention  of  fraud.  This  is  the 
power  which  is  now  transferred  for  a  limited  time  to  the  Governor, 
and  will  undoubtedly  be  exercised  by  him  in  such  wise  and  discreet 
manner  as  at  the  same  time  to  reconcile,  by  softening  the  rigid 
provisions  of  our  revenue  laws,  the  inhabitants  of  Louisiana  to  their 


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Ye  Olden  Tyme  127 

operation  and  to  protect  the  revenue  against  any  intentional  fraud. 
As  the  Governor,  for  the  time  being,  exercises  also  the  power  of  the 
intendant,  the  process  will  be  very  simple,  and  he  may,  after  having 
received  our  statement  and  objections,  decide  at  once  on  petitions 
and  communicate  the  result  to  you.  It  is  proper  to  add  that  this 
power  to  remit  forfeitures,  penalties,  and  to  remove  disabilities, 
must  strictly  be  confined  to  forfeitures,  penalties  and  disabilities; 
that  it  never  extends  to  the  allowance  of  drawbacks  when,  by  any 
deviations  from  the  provisions  of  the  law,  qt  by  any  omission  of  the 
party,  they  cannot  legally  be  granted,  nor  to  the  remission  of  duties 
legally  Incurred,  except  in  the  case  where  foreign  duties  may  have 
been  incurred  by  reason  of  a  register  being  forfeited  through  some 
want  of  form,  and  the  disability  thence  accruing  is  removed  by  the 
Secretary  of  the  Treasury,  or,  in  this  case  by  the  Governor  of  I^ouis- 
iana.  Observe,  however,  that  in  cases  where,  under  the  registering 
act,  a  new  register  cannot  be  granted,  no  power  exists,  under  the 
mitigation  act,  to  restore  the  vessel  to  the  privileges  of  a  vessel  of  the 
United  States.  A  case  has  been  stated  in  which  it  will  be  particularly 
proper  to  remit  the  forfeitures:  The  importation  of  spirits,  beer  and 
loaf  sugar  in  vessels  of  less  contents  than  those  prescribed  by  law;  so 
long,  at  least,  as  it  may  be  presumed  that  the  importers  could  not 
have  had  notice  of  the  law. 

**I  wish  to  be  informed  whether  any  vessel  can,  from  the  sea, 
ascend  the  Tourche,'  or  any  other  outlet  of  the  Mississippi.  If  so, 
an  inspector,  until  a  surveyor  shall  be  appointed,  should  be  located 
at  the  said  place,  or  such  outlet.  I  am  led  to  that  inquiry  from  ob- 
serving in  a  report  of  Dr.  Watkins  to  Gov.  Claiborne  that  a  vessel 
with  French  stores  of  a  suspicious  appearance  had  some  time  ago, 
entered  the  Mississippi  through  that  Tourche.*  If  it  shall  be  neces- 
sary to  have  a  boat  there  you  may  supply  one,  and  I  would  recom- 
mend that  whenever  barges  and  boats  shall  be  employed  the  person 
having  the  direction  be  instructed  to  report  to  you  the  soundings, 
both  at  low  and  high  water,  so  as  to  collect  precise  information  of  the 
depth  of  water  which  vessels  may,  at  drouth  seasons,  carry  up  those 
several  outlets  of  the  Mississippi.  Congress  having  authorized  the 
building  of  a  lighthouse  at  the  mouth  of  the  Mississippi,  I  will  write 
you  by  next  mail  particularly  on  that  subject,  and  mention  it  now  in 
order  that  you  may,  in  the  meantime,  collect  and  communicate  such 
information  as  relates  to  that  object. 

**  I  have  the  honor  to  be,  very  respectfully,  sir,  your  obedient 
servant. 

''ALBERT  GALLATIN." 


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REMEMBRANCES  OF  NEW  ORLEANS  AND  THE 
OLD  ST,  LOUIS  HOTEL 


From  the  Scrapbook  of  Miss  Grace  King 


The  veteran  Colonel  Cuthbert  Bullitt,  who  loves  Louisville 
and  New  Orleans,  and  who  lives  in  both  cities  in  their  best 
seasons,  and  who  has  written  much  entertaining  matter  of  the 
two  cities,  is  again  in  New  Orleans  to  spend  the  winter,  looking 
as  hale  and  hearty  as  a  man  of  his  years  could  be  expected  to  look. 
Colonel  Bullitt  hands  the  Picayune  the  following  note  for  publi- 
cation : 

Once  more  I  am  in  New  Orleans,  not  on  my  "native  heath," 
but  in  the  renowned  Hotel  Royal,  which  has  its  history,  and  as 
there  are  few  men  living  able  to  tell  of  it,  I  will  endeavor  to  do  so, 
and  as  briefly  as  I  can. 

Many  years  ago,  before  the  late  infernal  war,  when  cotton 
was  king,  at  high  prices,  and  our  golden  coast  along  the  shores  of 
the  big  Mississippi  was  redolent  with  the  sweet  odor  of  sugar- 
making,  everybody  during  the  happy  season  had  sugar  on  the 
brain,  or  cane  juice  in  their  mouths.  Everybody  seemed  happy, 
with  plenty  of  money,  when  the  "ancient  regime,"  the  Creoles  of 
Louisiana,  reigned  supreme  in  society,  and  having  abundance  of 
wealth,  they  determined  to  build  a  colossal  hotel,  that  would 
eclipse  all  others  in  America,  and  at  the  same  time  remind  them 
of  the  palaces  and  hotels  of  their  faraway  homes  in  "La  Belle 
France !" 

With  these  ideas  they  built  the  St.  Louis  Hotel,  with  its  won- 
derful dome,  on  a  small  scale,  equal  to  that  grand  one  at  our 
capital,  at  Washington. 

Here  is  art  in  all  its  grandeur,  done  by  the  world's  great 
artist,  Canova,  who  came  here  for  the  express  purpose.  He  has 
displayed  his  genius  on  its  walls,  with  gods  and  goddesses  stand- 
ing out  in  the  respective  panels,  in  bold  relief,  and  where  old  Nep- 
tune, with  his  water  nymphs,  have  a  good  time  generally,  and  of 
a  hot  day  I  feel  like  taking  a  hand  with  them. 

Fifty  years  have  passed  by  since  this  great  hotel  was  erected. 
When  the  solons  of  the  state  were  anxious  to  have  a  statehouse 
worthy  of  Louisiana,  they  purchased  it,  and  now  own  it. 


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Remembrances  of  New  Orleans  129 

In  occupying  it  they  deprived  it  of  some  of  its  grandeur  by 
flooring  over  the  second-story  for  the  hall  of  representatives. 

Like  all  solons  they  sometimes  make  mistakes,  and  they  con- 
cluded to  abandon  this  noble  structure  and  try  Baton  Rouge, 
from  whence  now  fulminates  the  law,  which  ought  to  govern  the 
State.  Fortunately,  they  could  not  remove  this  glorious  building, 
and  representative  of  the  old  Creole  population  in  whose  midst 
it  stands,  a  memorial  of  the  best  people  that  once  held  possession 
of  all  that  was  good.  » 

The  old  St.  Louis  has  gone,  in  all  its  glory,  with  its  busy 
crowd  of  merchants  and  planters.  The  great  auctions  of  land, 
horses,  and  negroes  are  heard  no  more,  and  in  its  place  stands 
the  great  Hotel  Royal,  under  the  charge  of  Colonel  Rivers,  one  of 
the  best-known  caterers  in  the  country,  where  social  luxury  is 
served  with  a  liberal  hand,  worthy  of  the  good  old  days  of  Creole- 
ism,  accompanied  by  an  abundance  of  substantial  good  things. 

The  beautiful  rotunda,  the  repose  of  art,  is  now  used  as  a 
"sailer  a  mange,"  or  dining-room,  where  several  hundred  persons 
can  be  seated,  and  at  night  the  brilliant  lights  from  a  huge  chan- 
delier, with  its  hundreds  of  illuminating  globes,  make  a  scene 
worthy  of  the  Arabian  nights,  where  women  are  seen  in  all  their 
splendor  from  the  reflection  from  the  great  glasses,  which  adorn 
the  walls  in  all  directions,  enabling  every  one  to  see  each  other 
without  moving  from  their  seats,  and  so  a  little  of  the  gaudy  glory 
of  the  old  house  is  left  for  appreciating  visitors. 

CUTHBERT  BXJLLITT. 


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INTERESTING  FOSSILS 


From  the  Scrapbook  of  Miss  Grace  King. 


Correspondence  of  The  Times-Democrat. 
Colfax,  La.,  Aug.  5,  1896. 

The  researches  and  accounts  of  the  Llarto  mounds  have 
aroused  some  curiosity  among  those  who  take  an  interest  in  such 
matters.  But  more  interesting  and  far  richer  fields  invite  the 
attention  of  the  student  of  geology.  I  allude  in  particular  to  the 
stretch  of  blue  bank  on  Red  River  lying  twenty  miles  above  here 
and  just  below  Montgomery.  There  is  a  bank  of  a  half  mile  in 
extent  which  is  a  rich  find  to  the  geologist.  There  is  found  in 
profusion  sea  shells,  bones  of  salt  water  fishes,  shark  teeth,  and 
other  curios.  I  once  found  there  a  section  from  the  jaw  of  a 
shark ;  the  teeth  more  than  an  inch  and  a  half  in  length  and  the 
edges  serrated  similar  to  some  of  the  extinct  specimens  named 
in  geology  by  Lyell.  Several  years  ago  the  State  geologist  here 
exhumed  the  fossil  remains  of  an  extinct  specimen  of  the  whale. 
But  by  far  the  greatest  find  is  now  in  the  office  of  Dr.  M.  A. 
Dunn,  of  this  place. 

In  1895  Dr.  Dunn  found  exposed  in  the  sides  of  this  blue 
bank  the  remains  of  an  animal;  the  erosion  and  crumbling  of 
bank  had  exposed  it.  The  doctor  went  after  suitable  tools  to  ex- 
hume it.  On  his  return  the  irrepressible  fifteen-year-old  boy  was 
there  and  had  damaged  the  find  considerably,  but  enough  is  re- 
covered to  identify  the  animal  as  the  pterodactylus,  which  be- 
came extinct  about  the  end  of  the  palaezoic  age;  accurately 
described  in  Dr.  Buckland's  "Bridgewater  Treatise."  This  hor- 
rible creature  could  fly,  walk  or  swim.  The  orbital  space  (eight 
inches)  indicates  him  to  be  a  nocturnal  animal  also.  The  bones 
are  of  a  density  and  hardness  unknown  in  any  of  our  living/ 
species.  His  gigantic  flippers  were  armed  with  hooks,  and  on  the 
end  of  the  flipper  was  another  hook  or  hand  terribly  armed.  His 
jaws  cut  past  each  other  like  scissors,  and  were  armed  with  a 
horrible  set  of  teeth,  those  in  our  specimen  being  as  large  as  the 
largest  sharks.  The  size  of  the  teeth  and  bones  would  conflict 
with  some  of  the  ideas  of  modern  geologists.  Having  seen  no 
restored  specimen  to  accurately  judge  by,  I  could  only  say  that 


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Interesting  Fossils  131 

any  approach  to  symmetry  would  indicate  an  animal  of  tremen- 
dous proportions,  with  bones  like  steel  and  armed  with  hooks 
and  flippers,  and  could  fly  in  the  air,  climb  precipices,  hop  on 
the  ground,  and  dive  and  plunge  in  the  water.  Such  an  animal 
would  seem  like  some  horrible  apparition,  enough  to  vanquish  a 
regiment  of  soldiers.  Probably  further  research  would  reveal 
wonderful  things.  Ages  ago,  before  the  upheaval,  here  sported 
on  this  vast  sea  antediluvian  and  prehistoric  monsters.  There 
are  many  such  banks  exposed  where  the  surf  roared  and  the  in- 
coming tide  deposited  these  animals.  I  will  incidentally  mention 
that  Dr.  Dunn  has  a  copy  of  LyelFs  Geology,  now  a  very  rare 
book  and  out  of  print. 

J.  E.  Dunn. 


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THE  LAST  CAPTURED  SLAVER 


From  Miss  King*s  Scrapbook, 


Cleveland  Leader:  The  only  captain  of  a  slave  vessel  who 
suffered  the  death  penalty  in  America  was  captured  by  a  crew 
of  which  one  of  the  members  is  now  a  citizen  of  Cleveland,  the  en- 
gineer of  the  People's  Gaslight  and  Coke  Company. 

"The  slave  ship  was  the  Erie,  and  it  was  the  last  American 
slaver  captured,"  said  Mr.  Matthews,  in  talking  about  the  his- 
torical event.  "She  was  taken  off  the  mouth  of  the  Congo  in  the 
spring  of  1861  by  the  United  States  sloop  of  war  Mohican.  I 
was  captain  of  the  foretop  and  of  the  starboard  watch.  The  cap- 
ture was  accidental;  the  vessels  dealing  in  slaves  would  slip  out 
at  intervals  between  the  patrol  beats  of  the  men-of-war,  and  they 
knew  pretty  well  our  habits.  But  this  time  the  Mohican;  was 
delayed  two  days  in  waiting  for  mail,  and  going  from  the  island 
of  Fernandizo  we  sighted  a  vessel  making  from  the  mouth  of  the 
Congo.  We  were  flying  a  French  flag.  We  signaled  her  to  heave 
to,  but  this  request  not  being  regarded,  a  shot  was  fired.  Then 
she  hove  to  without  offering  resistance,  and  a  party  being  sent 
aboard  found  every  one  dressed  alike.  It  was  thus  some  days  be- 
fore we  discovered  who  was  the  captain.  She  was  manned  by 
fifteen  men,  and  had  on  board  890  slaves  and  three  slave  agents. 
The  agents  and  five  Spaniards,  who  did  not  wish  to  claim  Amer- 
ican citizenship,  were  sent  away  in  a  trade  boat.  Eight  of  the 
slaver's  crew  were  shipped  on  the  Mohican,  and  the  officers  and 
two  of  the  crew  were  brought  to  America.  The  slave  ship  was 
taken  to  Liberia. 

"The  captain  of  the  slaver  was  Nathaniel  Gordon,  and  a 
year  after  his  capture  he  was  swung  on  Bedlow's  Island,  where 
the  statue  of  Liberty  now  stands.  The  first  mate  was  sentenc- 
ed to  ten  years'  imprisonment,  the  second  mate  received  a  five 
years'  sentence,  and  the  two  men  were  each  given  a  year. 

"The  severe  dealings  with. the  officers  were  due  to  the  in- 
tense feeling  on  the  slavery  question,  as  the  war  had  just  broken 
out.  The  second  mate  and  the  two  men  volunteered  to  enter  the 
army  and  were  allowed  to  go  free.  Our  lieutenant,  Dunnington, 
went  into  the  Confederate  navy,  after  bringing  Gordon  back. 


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The  Last  Captured  Slaver  133 

"About  three  months  before  the  experience  with  the  Erie,  a 
slaver  escaped  us  by  being  disguised  as  a  whaler.  The  simulation 
was  very  perfect,  and  on  the  decks  we  could  see  even  the  boiling 
vats.  The  captain  showed  papers  which  disarmed  suspicion,  and 
when  the  'whaler'  put  up  for  the  night  at  the  mouth  of  the  Congo 
our  captain  informed  him  that  next  morning  he  would  come 
around  on  a  visit. 

"In  the  morning  he  was  gone,  having  taken  1300  slaves 
aboard.  We  sighted  a  vessel  in  the  distance,  which  we  pursued, 
and  found  to  be  an  English  man-of-war,  also  trying  to  catch  the 
'whaler'." 


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LOUISIANA  LAND  TITLES  DERIVED  FROM  INDIAN 

TRIBES. 


By  Henry  P.  Dart. 


Primarily  all  titles  to  land  in  Louisiana  are  derived  from  the 
Sovereign,  that  is,  France,  Spain  and  the  United  States,  but  the 
title  of  the  Indians  to  the  land  actually  occupied  by  them  was  al- 
ways recognized  by  the  French  and  Spanish  governors  and  spe- 
cial rules  were  established  to  protect  and  to  regulate  sales  of  such 
land  by  the  Indians. 

The  document  printed  herewith  is  an  unusually  interesting 
study  of  these  rules  and  methods,  and  it  also  perpetuates  the 
testimony  of  several  surveyors  and  officials  of  that  period.  It  is 
possible  that  the  same  information  may  be  found  in  official  publi- 
cations but  it  is  gathered  here  in  compact  shape  and  will  un- 
doubtedly appeal  to  a  large  circle  of  readers. 

As  will  be  seen  from  the  text  it  is  a  copy  of  a  report  made 
in  April  1815  by  the  Board  of  Commissioners  appointed  by  the 
United  States  to  ascertain  and  to  adjust  titles  and  claims  to  land 
in  the  Western  District  of  the  Territory  of  Orleans.  Its  present 
value  is  purely  historical  and  we  are  glad  of  the  opportunity  to 
print  this  document,  which  comes  from  the  private  collection  of 
Mrs.  H.  H.  Cruzat. 


Claims 

Reported  by  Commissioners. 

Opelousas  Claims.    No.  1. 

Pierre  Arceneaux  claims  one  third  part  of  the  land  lying 
between  the  Coule  d'Aigle  and  Frederick  Mouton's  land,  being  in 
depth  40  arpents.  This  land  was  purchased  by  the  said  Pierre 
from  Frederick  Mouton,  who  purchased  from  an  Indian  chief 
of  the  tribe  of  Attakapas.  The  notice  of  this  claim  is  accom- 
panied by  the  following  documents.  1st:  A  certified  copy  of  a 
deed  of  Sale  by  Achenoya,  chief  of  the  Attakapas  tribe  of  Indians, 
vested  with  power  by  Jacob  Letortue,  Jr.  and  Baptiste  (as  set 
forth  in  the  said  deed  of  Sale)  to  Frederick  Mouton,  for  a  tract 


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Louisiana  Land  Titles  Derived  From  Indian  Tribes       135 

of  land  in  the  quarter  called  Bayou  de  Blanc  in  the  County  of 
Opelousas,  bounded  on  one  side  by  other  land  of  the  purchaser, 
and  on  the  other  side  by  the  Coul6  d'Aigle,  with  the  depth  of  40 
arpents,  for  the  consideration  of  115  dollars ;  sale  passed  29th  July, 
1802  before  Honor6  de  la  Chaise,  then  acting  as  Commandant  for 
the  Post  of  Opelousas.  2dly :  A  Sale  by  the  said  Frederick  Mou- 
ton  to  the  said  Pierre  Arceneaux,  passed  the  5th  October,  1804  be- 
fore the  said  Honore  de  la  Chaise,  then  styling  himself  "Com- 
mandant for  the  United  States  of  America"  of  the  Post  of  Ope- 
lousas, for  one  third  part  of  the  land  purchased  by  the  said  Mou- 
ton  from  the  Indians,  to  be  taken  next  to  the  Coul4  d'Aigle.  No 
evidence  has  been  adduced  in  this  claim  to  establish  a  title  by 
occupancy,  it  is  therefore  to  be  inferred  that  the  claimant  relies 
on  the  validity  of  the  Indian  title  and  presumes  the  transfer  pass- 
ed before  the  Commandant  to  be  good  and  sufficient.  It  may  not 
be  improper  here  to  inquire  whether  and  how  far  this  case  and 
others  similarly  circumstanced  may  be  affected  by  the  laws  of  the 
United  States,  restraining  the  purchasing  of  the  lands  of  Indians 
by  unauthorized  individuals.  By  an  Act  of  Congress  passed  the 
30th  March,  1802  "for  regulating  trade  and  intercourse  with  the 
Indian  triljes  and  to  preserve  peace  on  the  Frontiers,'*  it  is  en- 
acted, that  no  Grant,  Lease,  or  other  conveyance  of  lands,  or  any 
title,  or  claim  thereto  from  any  Indian,  or  Nation,  or  tribe  of  In- 
dians within  the  boundaries  of  the  United  States,  shall  be  of  any 
validity,  unless  made  by  treaty  or  convention  made  pursuant  to 
the  Constitution.  And  it  is  made  a  misdemeanor  punishable  by  fine 
and  imprisonment  for  any  person  not  employed  under  the  author- 
ity of  the  United  States  to  negotiate  any  treaty,  or  convention 
with  Indians,  or  treat  with  them  for  the  title,  or  purchase  of  any 
lands  held  by  them  (See  the  12th  Section  of  the  above  recited 
Act)  The  provisions  of  the  Statute  above  quoted,  were  by  an 
Act  of  Congress  passed  the  26th  March,  1904,  entitled  "an  Act 
erecting  liouisiana  into  two  territories,  and — "  extended  to  the 
territories,  to  take  effect  from  and  after  the  first  day  of  October, 
1804.  Anterior  to  the  said  first  day  of  October,  an  Act  passed 
the  31st  October,  1803  entitled  "An  Act  to  enable  the  President  of 
the  United  States  to  take  possession  of  the  Territories  ceded  by 
France  to  the  United  States  and  for  the  temporary  Government 
thereof,"  was  to  remain  in  force.  By  the  last  mentioned  Act, 
neither  the  right  of  the  Indians  to  sell,  nor  of  any  individual  to 
purchase  from  them  has  been  interdicted,  or  restrained.    No 


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136  The  Louisiana  Historical  Qicarterly 

doubts  therefore  can  exist  of  the  Indians  within  the  limits  of 
Louisiana  having  had  the  same  rights  to  pass  Sales  of  their  Lands 
at  anj'  time  previous  to  the  first  day  of  October,  1804,  that  they 
enjoyed  whilst  Louisiana  continued  to  be  a  Colony  of  Spain.  Such 
Sale  however  could  only  vest  in  a  purchaser  the  kind  of  title 
which  the  Indians  held.  It  therefore*  becomes  necessary  next, 
to  examine  the  nature  and  tenure  of  the  Indian  title  to  Land  in 
Louisiana.  The  Spanish  functionaries  seem  to  have  made  a 
distinction  between  Indians  who  had  partaken  of  the  rights  of 
Baptism,  and  the  ordinary  tribes,  or  nations  of  Indians  within 
the  limits  of  Louisiana.  The  former  were  denominated  "Christian 
Indians,"  a  term  usually  if  not  invariably  incorporated  in  the 
body  of  the  instrument,  by  which  their  titles  to  lands  were  trans- 
ferred to  others.  These  Indians  seem  to  have  been  considered 
capable  of  holding  and  enjoying  lands  in  as  full  and  ample  a  man- 
ner as  any  other  subjects  of  the  Crown  of  Spain.  That  the  tenure 
of  the  title  of  Lands  held  by  Indians  not  denominated  Christians, 
may  be  more  clearly  comprehended  and  that  repetition  may  be 
avoided  in  the  progress  of  this  report,  the^undersigned  Commis- 
sioners think  it  necessary  here  to  insert  such  extracts,  both  from 
the  testimony  adduced  and  written  documents  filed  in  other 
claims  held  under  purchase  from  Indians  as  may  appear  in  any 
degree  applicable  to  the  one  under  consideration,  to  which  they 
may  find  it  convenient  and  useful  to  make  frequent  references  in 
their  remarks  on  other  claims  similarly  circumstanced.  From 
testimony  given  in  the  claim  of  Thomas  Nicholson  (which  will 
be  reported  among  the  claims  in  the  County  of  Attakapas)  by 
Lewis  C.  De  Blanc,  Esqre.  formerly  exercising  the  Office  of 
Commandant  Civil  and  Military  for  the  District  of  Natchitoches 
and  afterwards  the  same  Office  for  the  District  of  Attakapas, 
the  following  is  extracted  "The  right  of  the  Indians  to  sell  their 
lands  always  was  recognized  and  admitted  by  the  Spanish  Gov- 
ernment." "We  always  consider  the  title  from  the  Indians  to 
their  villages  the  best  of  titles,  because  the  original  property  of 
the  soil  was  in  them,  and  when  this  country  was  conquered,  the 
laws  of  the  Conquerors  were  enforced,  but  the  property  of  the 
Aborigines  was  held  sacred.  Hence  the  difference  between  the 
titles  of  Indians  and  other  subjects.  The  other  subjects  who 
wanted  land  must  demand  and  have  a  written  title;  it  was  not 
necessary  for  the  Indians,  because  they  already  held  a  title  to  the 
land  they  claimed.    Their  title  originated  in  first  occupancy,  cul- 


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Louisiana  Land  Titles  Derived  From  Indian  Tribes       137 

tivation  and  settlement.  The  Indians  never  claimed  other  Lands 
than  their  villages,  and  when  they  did  it  was  given  them  by  the 
Government.  There  never  was  any  instance  of  the  Government 
of  Spain  taking  land  from  the  Indians,  especially  their  villages. 
Even  when  the  Indians  had  abandoned  some  old  villages  because 
their  hunting  was  exhausted,  and  had  established  new^  ones  by 
the  Grant  of  the  Spanish  Government,  their  villages  deserted 
were  always  considered  as  their  property,  subject  to  their  dis- 
posal and  the  Inhabitants  never  suffered  to  settle  there,  but  where 
always  driven  off.  There  was  no  time  fixed  in  which  a  Deed 
must  be  presented  for  approbation.  It  could  be  presented  in  one  ■ 
year,  or  a  hundred  years,  and  it  would  always  receive  the  Sanction 
of  Government.  The  laws  made  it  necessary  when  the  Indians 
sold  their  lands  to  have  the  Deeds  presented  to  the  Governor  for 
approbation.  This  was  only  a  form,  as  the  Governor  in  all  cases 
approved  and  never  refused.  The  villages  of  the  Indians  never 
consisted  of  less  than  a  league  and  often  two  leagues,  or  more 
in  front,  and  it  was  the  custom  of  the  Spanish  Government  when- 
ever they  granted  land  to  Indians  to  give  them  a  league,  or  more 
square." 

In  the  claim  of  Miller  and  Fulton  for  a  tract  of  land  on  Bayou 
Boeuf  in  the  County  of  Rapides  purchased  from  Indians,  which 
will  be  reported  by  the  Register  and  Receiver  of  this  district  pur- 
suant to  the  provisions  of  an  Act  of  Congress  passed  the  27th 
February,  1803,  will  be  seen  the  testimony  of  Mr.  Charles  Laveau 
Trudeau  many  years  Surveyor  General  of  the  Province  of  Lou- 
isiana, under  the  Spanish  Government,  from  which  the  following 
is  extracted.  "The  Deponent  knows  of  no  Ordinances  or  Regula- 
tions under  any  Governor  of  Louisiana,  except  O'Riley,  by  which 
the  Indians  inhabiting  lands  in  the  Province  were  limited  in 
their  possessions  to  one  league  square  about  their  villages,  but 
this  regulation  has  not  been  adhered  to  by  any  of  his  Successors. 
The  Deponent  knows  that  the  custom  was,  that  when  a  tribe  of 
Indians  settled  a  village  by  the  consent  of  the  Government,  that 
the  chief  fixed  the  Boundaries,  and  where  there  were  one,  or  more 
neighboring  villages  the  respective  chiefs  of  those  villages  agreed 
upon  and  fixed  the  Boundaries  between  themselves,  and  when 
any  tribe  sold  out  its  village  the  Commandant  uniformly  made 
the  conveyance  according  to  the  limits  pointed  out  by  the  chief. 
The  lands  claimed  by  the  Indians  around  their  villages,  were  al- 
ways considered  as  their  own,  and  they  were  always  protected  in 


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138  The  Louisiana  Historical  Quarterly 

the  unmolested  enjoyment  of  it  by  the  Government  against  all 
the  World  and  has  always  passed  from  one  generation  to  another, 
so  long  as  it  was  possessed  by  them  as  their  own  property.  The 
Indians  always  sell  their  land  with  the  consent  of  the  Govern- 
ment, and  if,  after  selling  their  village  and  the  lands  around  it, 
they  should  by  the  permission  of  the  Government  establish  them- 
selves elsewhere,  they  might  again  sell,  having  first  obtained  the 
permission  of  the  Government  a^id  so  on  as  often  as  such  per- 
mission was  obtained,  and  no  instance  is  known  where  such  per- 
mission has  ever  been  refused  or  withheld.  These  sales  were 
passed  before  the  Commandant  of  the  District  and  was  always 
considered  good  and  valid  without  any  Order  from  the  Comman- 
dant.*' 

In  the  claim  of  Miller  and  Fulton  for  Land  on  Bayou  Boeuf, 
the  following  is  an  extract  from  the  testimony  of  Mr.  Valentine 
Laypard  late  Commandant  under  the  Spanish  Government  for  the 
Post  of  Rapides. — "The  Deponent  has  never  known  a  smaller 
quantity  then  a  league  square  of  land  to  be  assigned  to  any  one 
Tribe  of  Indians  let  their  numbers  be  what  they  might,  and  in  one 
case,  namely,  the  Apalachie  Tribe  (a  small  tribe)  a  much  larger 
quantity  than  a  league  square  of  the  first  quality  and  situation  on 
Red  River  was  assigned  them."  (See  Rapides  Report  No.  125) — 
Extract  from  the  testimony  of  the  same  person  in  the  claim  of 
Miller  and  Fulton  for  Land  on  Red  River.  The  Deponent  sayeth 
**that  he  had  been  Agent  of  Indian  affairs  for  many  years  under 
the  Spanish  Government  for  the  Post  of  Rapides ;  spoke  the  Lan- 
guage of  the  Indians  &ca.  That  in  the  year  1803  the  Apalachie 
and  Tensas  tribes  of  Indians  came  to  the  Deponent  as  Indian 
Agent,  to  inform  him  of  their  having  sold  their  land  to  Miller  and 
Fulton  and  requested  him  to  pass  the  Sale,  that  the  Deponent 
replied  to  the  Indians,  that  neither  himself,  nor  they  could  dispose 
of  or  convey  their  Lands  without  the  authority  and  approbation 
of  the  Governor  of  the  Province."  By  referring  to  the  documents 
filed  in  the  claim,  it  will  be  seen  that  application  was  made  to  the 
Governor,  who  gave  his  written  permission  for  the  Chief  to  sell, 
with  the  consent  of  his  Nation.    See  Rapides  Report  No.  126. 

In  the  Claim  of  Patrick  Morgan  and  Daniel  Clark  for  a  tract 
of  Land  in  the  Attakapas  County,  which  will  be  reported  among 
other  claims  of  the  said  County,  it  will  be  seen  that  a  Mr.  Fuse- 
lier  de  la  Clair  had  purchased  from  Rinemo,  Chief  of  the  Atta- 
kapas village  called  in  French  "Lamonier"  the  said  Village  and 


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Louisiana  Land  Titles  Derived  From  Indian  Tribes       139 

land  depending  thereon  of  two  leagues  in  front  from  North  to 
South,  limited  on  the  West  by  the  river  Vermillion  and  on  the 
East  by  the  river  Teche.  This  Sale  w^s  passed  in  November  1760 
when  Louisiana  was  subject  to  France,  and  being  executed  before 
Mr.  Kerleric,  then  Governor  of  the  Province,  is  evidence,  that  the 
consent  of  the  Governor  to  Sales  passed  by  Indians  was  at  that 
date  considered  necessary  to  their  validity.  About  the  same 
time  that  the  above  Sale  was  passed,  three  or  four  other  pur- 
chases were  made  from  the  Indians  of  Attakapas,  by  which  a  very 
large  proportion  of  the  land  of  that  District,  and  nearly,  or  quite 
all  of  the  valuable  Lands  on  the  river  Teche  were  embraced.  After 
Louisiana  had  changed  Sovereigns  and  became  a  Colony  of  Spain^ 
the  Count  de  O'Riley,  the  first  Governor  of  the  Province  under  the 
Spanish  Monarchy,  passed  Regulations,  or  Ordinances  by  whom 
no  Grant  for  Land  in  Opelousas,  Attakapas,  or  Natchitoches 
could  exceed  one  League  square.  It  would  seem  that  in  some 
cases  these  regulations  were  intended  to  have  a  retrospective 
operation,  for  we  find  that  Mr.  De  la  Clair  in  the  year  1770  pe- 
titioned the  Governor  for  a  Grant  of  one  league  front  by  a  league 
in  depth,  expressly  admitting  in  his  petition  that  the  Sale  from 
the  Indians  "was  not  sufficient  to  assure  to  him  the  property  of 
the  said  land."  On  this  petition  the  said  Governor  O'Riley  on  the 
2d  March,  1770  made  what  was  denominated  a  Provincial  con- 
cession ordering  the  Surveyor  to  make  out  the  limits  to  the  peti- 
tioner of  a  tract  of  land  of  one  league  front  by  a  league  in  depth. 
In  like  manner  have  the  other  purchasers  from  Indians  been 
reduced  to  one  league  square,  the  surplusage  not  having  been 
considered  as  reverting  to  the  Indians,  but  as  making  a  part  of  the 
Royal  Domain  which  has  been  granted  from  time  to  time  as  it 
may  have  been  petitioned  for  by  other  individuals. 

In  the  claim  of  Stephens  Lynch  (Rapides  Reports  No.  108) 
it  will  be  seen  that  Ljmch  purchased  from  the  Attorney  in  fact  of 
the  Rev.  Mr.  McGuire,  who  purchased  from  Indians  and  is  to  be 
entitled  to  receive  nothing  in  payment  from  the  purchaser,  until 
the  Sale  made  by  the  Indians  to  McGuire  shall  have  been  ratified 
by  the  Governor.  In  the  same  claim,  a  Document  is  filed,  which 
appears  to  be  a  transcript  of  a  judicial  investigation  and  deci- 
sion of  the  conflicting  claims  of  the  said  Lynch  and  a  man  named 
Carrizan  before  Cezar  Archinard,  Alcalde  of  the  District,  who  has 
decided  that  Lynch's  title  is  good,  provided  Carrizan  shall  not  be 
able  to  produce  a  prior  conveyance  from  McGuire,  or  his  Attorney 


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140  The  Louisiana  Historical  Quarterly 

and  provided  also,  that  the  Sale  from  the  Indians  to  McGuire 
shall  be  ratified  by  the  Government. 

In  the  Claim  of  Joseph  Gillard  (Rapides  Report  No.  57)  in 
passing  the  Sale  from  the  Indians  to  Collin  LaCour,  the  Com- 
mandant of  Natchitoches,  before  whom  it  was  executed,  Louis  C. 
DeBlanc,  has  inserted  a  condition,  making  it  necessary  that  the 
Deed  shall  be  presented  to  the  Governor  General  of  the  Province 
for  his  approval  and  confirmations. 

In  the  claim  of  John  Lyon  for  a  tract  of  land  on  the  Bayou 
Queue  de  Tortue,  purchased  from,  an  Indian  of  the  Attakapas 
tribe  named  Celestine,  the  Commandant  who  wrote  the  Deed  of 
Sale  and  before  whom  it  was  executed  (Louis  C.  DeBlanc)  has 
included  a  provision,  whereby  it  was  made  necessary  to  present 
the  Deed  for  the  approbation  of  the  Governor  General  of  the 
Province.  In  the  foregoing  Document  strong  evidence  is  per- 
ceived of  the  general  understanding,  that  the  sanction  of  the 
Governor  of  the  Province,  whilst  Louisiana  continued  to  be  a 
Spanish  Colony,  was  necessary  to  the  validity  of  all  Sales  made 
by  Indians,  other  than  those  denominated  Christians,  and  it 
necessarily  results,  that  titles  held  under  such  Sales  were  in- 
choate until  the  Sanction  was  obtained.  The  Sales  by  the  Indians 
transferred  the  kind  of  right  which  they  possessed.  The  ratifica- 
tion of  the  sale  by  the  Governor  must  be  regarded  as  a  relin- 
quishment of  the  title  of  the  Crown  in  favor  of  the  purchaser. 
May  the  Indians,  on  account  of  being  the  Aborigines  of  the  Coun- 
try, be  considered  as  having  at  all  times  had  a  right  to  the  unap- 
propriated, or  unoccupied  Lands,  and  can  their  Sales  for  Lands 
which  they  did  not  occupy,  be  taken  as  vesting  in  a  purchaser  an 
indefeasible  title? — It  will  be  noticed  that  in  the  extract  made 
from  the  testimony  of  Mr.  DeBlanc  there  is  an  assertion,  that  the 
titles  of  the  Indians,  especially  to  the  lands  including  their  vil- 
lages was  considered  under  the  Spanish  Government  as  "the  best 
of  titles"  and  that  this  title  was  held  sacred,  on  account  of  their 
being  the  Aborigines  of  the  Country.  The  same  witness  has  also 
said,  that  even  the  villages  abandoned  by  the  Indians  were  after- 
wards regarded  as  their  property  and  subject  to  their  disposal. 
The  undersigned  Commissioners  do  not  perceive  the  orthodoxy  of 
these  assertions.  If  the  Indian  title  really  possessed  the  dignity 
which  Mr.  DeBlanc  has  assigned  to  it,  a  formal  extinction  of  that 
title  by  treaty,  or  purchase  by  the  French,  or  Spanish  Govern- 
ment ought  to  have  preceded  ajl  Grants  made  by  either  of  these 


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Louisiana  Land  Titles  Derived  From  Indian  Tribes       141 

Governments,  because  there  was  not  perhaps  a  spot  of  the  Coun^ 
try  susceptible  of  Settlement  which  the  roving  natives  had  not 
at  some  past  period  occupied.  It  will  be  observed  that  in  another 
part  of  his  testimony  Mr.  DeBlanc  has  insinuated  that  this 
Country  was  conquered  from  the  Indians.  The  inquiries  and 
researches  of  the  undersigned  however,  afford  them  no  evidence 
of  any  fact  which  can  induce  them  to  consider  the  Country  as 
having  been  acquired  by  conquest,  on  the  contrary,  the  Indians 
seem  to  have  permitted  European  emigrants  to  usurp  the 
Sovereignty  of  the  Country  without  making  any  opposition  to 
them,  and  the  rights  thus  obtained  by  the  Crown  of  France  and 
afterwards  transferred  to  that  of  Spain  has  acquired  force  and 
validity  by  prescription,  has  been  legitimated  by  the  tacit  ac- 
quiescence of  the  natives  in  that  usurpation.  If  it  should  be  asked 
what  evidence  exists  of  the  Law  of  prescription  operating  to  V 
extinction  of  the  Indian  title  to  Lands  in  Louisiana,  it  might  be 
replied  that  the  evidence  is  to  be  found  in  the  various  acts  of^ 
the  Spanish  Government  in  relation  to  the  Indians,  evincing,  that 
the  Government  recognized  no  title  in  them  independently  of  that 
derived  from  the  Crown,  a  mere  right  of  occupancy  at  the  will  of 
the  Government,  else  why  was  the  Sanction  of  the  Government 
necessary  to  all  Sales  passed  by  Indians,  which  may  be  clearly 
established  by  a  recurrence  to  written  document  and  the  Testi- 
mony of  Messrs.  Trudeau,  De  Blanc  and  Laypard,  and  why  was  it 
not  necessary  to  have  such  sanction  of  the  Sales  made  by  other 
subjects  of  the  Spanish  Government.  The  force  and  effect  of 
prescription  in  abolishing  the  Indian  title  to  Lands  in  Louisiana 
is  further  established  by  the  Indians  permitting  themselves  to 
be  removed  from  place  to  place  by  Governmental  authority,  by 
their  condescending  in  some  cases  to  ask  permission  5f  the  Gov- 
ernment to  sell  their  lands,  and  when  that  permission  wasi  not 
solicited  assenting  to  the  insertion  of  a  clause  in  the  Deeds  of 
Sale,  expressly  admitting  that  their  Sales  could  be  of  no  validity 
without  the  ratification  of  the  Governor.  "There  was  no  time 
fixed"  (says  Mr.  DeBlanc  in  another  part  of  his  testimony)  "in 
which  a  Deed  must  be  presented  for  approbation,  it  might  b# 
presented  in  one  year,  or  an  hundred  years  and  would  always 
receive  the  Sanction  of  the  Government.  Would  it  not  be  a 
very  preposterous  regulation  under  any  form  of  Government, 
and  very  unlikely  to  have  existence  under  a  Monarchial  one,  that 
should  require  the  acts  of  an  inferior  to  be  submitted  to  a  su-^ 


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perior  Officer  for  his  scrutiny  and  approbation  and  at  fhe  same 
time  deny  to  such  superior  the  right  of  rejection?  That  there- 
fore, the  Governors  of  the  Spanish  Colony  of  Louisiana  had  tiie 

right,  not  only  of  rejecting  Indian  Sales,  but  of  actually  annihilat- 
ing them  it  is  conceived  will  not  be  denied,  nor  is  at  all  probable 
that  the  Governors  either,  would  always  sanction,  or  have  always 
sanctioned  such  Sales.  Let  it  be  remembered,  that  in  the  whole 
extent  of  the  Western  District  there  are  not  more  than  three 
out  of  the  many  Sales  made  by  Indians  since  Louisiana  became  a 
Colony  of  Spain,  which  are  known  to  have  received  the  Gov- 
ernmental sanction.  And  let  it  be  known  also,  that  a  Sale  that 
may  have  been  rejected  by  any  Governor,  would  not  have  been 
exhibited  to  the  Board  of  Commissioners  as  evidence  of  Title. 
Therefore,  altho'  the  Board  of  Commissioners  have  no  means  of 
producing:  any  proof  of  the  rejection  of  any  Indian  Sale,  it  does 
not  lollow  that  none  have  been  rejected.  The  practice  by  Gov- 
ernor (.)  Riley  ol*  reducing  the  quantity  of  land  embraced  by  Sales, 
which  had  been  made  by  Indians,  under  the  Sanction  of  the  Gov- 
ernment when  Louisiana  was  a  Colony  of  France  was  much 
more  arbitrary.  But  if  it  could  be  established,  that  no  Indian 
Sale  was  ever  rejected  by  the  Spanish  Government,  this  would 
only  prove  that  none  had  been  presented  but  such  as  were  ad- 
missible. Not  that  a  case  might  not  occur  which  would  demand 
the  exercise  of  the  Governors  negative.  Suppose  for  example  a 
Sale  from  the  Opelousas  Indians,  at  a  time  when  that  tribe  had 
dwindled  down  to  not  more  than  twenty  persons,  which  should 
embrace  half  the  unoccupied  Land  in  the  County  of  Opelousas; 
can  it  be  imagined  that  such  a  Sale  would  not  have  been  rejected 
by  any  Governor  of  Louisiana?  Many  of  the  Sales  from  the  Atta- 
kapas  Indians  were  obtained  about  the  time  of  the  change  of 
Government  by  which  Louisiana  was  transferred  to  the  United 
States,  some  of  them  subsequent  to  that  change  and  at  a  time 
when  it  is  known  from  good  information,  that  those  Indians  were 
reduced  to  one  single  village,  the  inhabitants  of  which  were  short 
of  one  hundred.  In  some  cases  as  will  appear  by  the  subjoined 
Schedule  of  Indian  Sales,  six,  or  eight  distinct  tracts  of  land  have 
been  sold  by  the  same  individual  Indians.  Is  it  not  probable,  that 
if  Sales  had  been  passed  under  circumstances  such  as  are  stated 
above,  before  the  Change  of  Government,  or  prospect  of  such 
a  change  they  would  have  been  rejected?  Although  no  time  may 
have  been  prescribed  within  which  the  Sales  of  Indians  were  to 


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Louisiana  Land  Titles  Derived  From  Indian  Tribes       143 

have  been  presented  for  ratification,  the  purchasers  could  not 
have  been  ignorant,  that  the  regulations  required  that  they  should 
be  presented  at  some  time  for  ratification,  because  the  condition 
was  generally  expressed  on  the  face  of  the  Deed,  and  therf ore 
they  must  have  known  that  their  titles  were  incomplete  at  all 
times  before  the  ratification.  The  undersigned  Commissioners 
are  of  opinion,  that  there  is  a  wide  difference  between  the  titles 
of  such  persons  as  have  purchased  lands  from  Indians  which  such 
Indians  were  actually  occupying  at  the  date  of  their  Sales,  and  the 
titles  and  claims  of  persons  who  purchased  from  Indians  not  in 
the  actual  occupancy  of  the  land  at  the  date  of  their  Sales.  Pur- 
chasers of  the  first  description,  although  the  Deeds  of  transfer 
may  not  have  been  presented  and  of  course  could  not  have  receiv- 
ed the  Governmental  Sanction,  may  be  considered  as  having  ex- 
tinguished the  kind  of  title  which  the  Indians  enjoyed,  and  are 
therefore  in  the  opinion  of  the  Commissioners  equitably  entitled 
to  so  much  at  least  of  the  land  claimed  as  would  be  a  full  in- 
demnity for  the  consideration  paid  for  it.  Purchasers  of  the 
second  description  would  not,  in  the  opinion  of  the  Board,  be 
entitled  to  any  remuneration,  because  it  is  conceived,  the  Indians 
in  such  cases  were  selling  a  thing  to  which  they  had  no  kind  of 
title.  The  investigation  of  claims  for  lands  purchased  from  In- 
dians seem  to  have  brought  into  view  four  distinct  classes — 
first,  claims  for  lands  purchased  from  Indians  denominated 
Christians,  whose  Sales  are  generally  for  small  tracts,  of  such  ex- 
tent as  an  Indian  and  his  family  might  be  supposed  capable  of 
cultivating,  passed  before  the  proper  Spanish  Officer  and  duly 
filed  of  Record,  these  Sales  are  believed  to  have  been  valid,  by  the 
usages  of  the  Spanish  Government  without  ratification  being 
necessary.  Secondly,  claims  for  lands  purchasied  from  some 
tribe,  or  chief  of  some  tribe  of  Indians,  the  Sales  of  which  may 
have  been  ratified  by  the  Governor  of  the  Province.  These  are 
also  considered  as  valid.  The  Indian  sale  transferring  their  right. 
The  ratification  by  the  Governor  being  regarded  as  a  relinguish- 
ment  in  favor  of  the  purchaser  of  the  right  of  the  Crown.  Thirdly, 
claims  for  lands  purchased  from  Indians  of  the  description  last 
mentioned,  who  from  the  evidence  adduced  before  the  Board 
shall  appear  to  have  been  in  the  actual  occupancy  of  the  land  at 
the  date  of  the  Sale,  but  whose  deeds  of  Sale  may  not  have  been 
presented  for  the  ratification  of  the  Governor*  In  this  case  the 
Indians  are  considered  as  having  transferred  only  the  right  of  oc- 


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cupancy  which  they  held  at  the  will  of  the  Government,  the  title 
is  incomplete,  but  the  purchaser  supposed  to  have  an  equitable 
claim  for  the  confirmation  of  his  title  to  so  much  of  the  land 
claimed  as  would  be  a  full  indemnity  for  the  consideration  he  may 
have  paid.  Fourth  and  lastly,  claims  for  lands  sold  by  Indians  of 
the  last  description,  who  did  not  occupy  them  at  the  date  of  their 
Sales  and  whose  Sales  have  not  been  ratified  by  any  Governor  of 
Louisiana.  Such  Sales  are  considered  as  vesting  no  title  in  the 
purchasers  (unless  accompanied  by  some  equitable  circumstance 
in  their  favor)  and  in  the  Opinion  of  the  Board  of  Commissioners 
ought  not  to  be  confirmed.  Of  this  last  class  is  the  claim  at  pres- 
ent under  consideration,  unattended  by  any  circumstances  known 
to  the  Board  of  Commissioners,  which  might  entitle  it  to  a  con- 
firmation. 


Land  Office  at  OpelOusas. 
State  of  Louisiana,  27  January,  1826. 
I  do  hereby  certify  the  foregoing  to  be  a  true  and  cor- 
rect copy  of  the  original  filed  and  of  Record  in  my  Office, 
reported  by  the  Board  of  Commissioners  appointed  for 
the  purpose  of  ascertaining  and  adjusting  titles  and 
claims  to  lands  in  the  Western  District  of  the  Territory 
of  Orleans,  now  State  of  Louisiana,  in  their  report  of  claims 
for  the  County  of  Opelousas  on  the  6th  of  April,  1815  to 
the  Honorable  Albert  Galatin,  Secretary  of  the  Treasury  of 
the  United  States.  And  I  do  hereby  further  certify  that 
the  same  has  been  acted  upon  and  approved  by  Act  of  Con- 
gress passed  the  29th  day  of  April  in  the  year  1816. 

Given  under  my  hand  and  private  seal,  at  my 
Office  aforesaid,  the  day  &  year  aforesaid. 
(L.  S.)  (sig.)  Valentine  King. 

Register. 


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Lt^.   5.0.0 OS'S 

The  Louisiana 
Historical  Quarterly 

Vol.  4,  No.  2  April,  1921 


Mazureau's  Oration  an  Mathews. 

George  Mathews — President  of  the 
Supreme  Court  of  Louisiana. 

Discourse  on  the  Life  and  Character 
of  the  Hon.  George  Mathews. 

Fire  Protection  in  New  Orleans  in 
Unzaga's  Time. 

The  Oath  of  Allegiance  to  Spain. 

Cabildo   Archives — French   Period, 
No.  IX. 

Records  of  the  Superior  Council  of 
Louisiana. 


Published  May,  1922 


Published  Quarterly  by 

THE  LOUISIANA  HISTORICAL  SOCIETY 

CABILDQ,  NEW  ORLEANS,  LA. 


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Historical  Quarterly 


Vol.  4,  No.  2 


April,  1921 


Entered  to  the  second  claae  mail  matter  June  6,  1917,  ac  the  pott-oflficelat  New  Orleans,  La., 
under  Act  ot  August  24,  1912. 

Subacriftion  S2.(X)  per  annum,  payable  in  advance.  .  Address,  Louisiana  Historical  Quarterly. 
Cabildo,  New  Orleans,  La. 


RamireS'Jones  Printing  Co. 
Baton  Rouge,  La. 


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OFFICERS 

OF  THE 

LOUISIANA  HISTORICAL  SOCIETY 

CASPAR  CUSACHS,  President. 

JOHN  DYMOND,  First  Vice-President. 

BUSSIERE  ROUEN,  Second  Vice-President. 

HENRY  RENSHAW,  Third  Vice-President. 

W.  O.  HART,  Treasurer. 

HENRY  P.  DART,  Archivist. 

MISS  GRACE  KING,  Recording  Secretary. 

MRS.  HELOISE  HULSE  CRUZAT,  Corresponding  Secretary. 

Executive  Committee 

John  Dymond,  Chairman;  Caspar  Cusachs,  Bussiere  Rouen,  Henry  Renshaw, 
W.  O.  Hart,  Henry  P.  Dart,  Miss  Grace  King  and  Mrs.  Heloise  Hulse  Cruzat. 

Editor  Historical  Quarterly 

JOHN  DYMOND.  CabUdo.  New  Orleans. 


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Table  of  Contents 

Volume  4«  No.  2  April,  1921 


Mazureau's  Oration  on  Mathews 149 

George  Mathews — President  of  the  Supreme  Court  of  Louisiana. .  154 

Discourse  on  the  Life  and  Character  of  the  Hon.  George  Ma-thews . .  189 

Fire  Protection  in  New  Orleans  in  Unzaga's  Time 201 

The  Oath  of  Allegiance  to  Spain 205 

Cablldo  Archives— French  Period— IX 21« 

Recorder  of  the  Superior  Council  of  Louisiana 218 


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The  Louisiana 
Historical  Quarterly 

Vol.  4,  No.  2  April,  1921 

MAZUREAU'S  ORATION  ON  MATHEWS. 


By  Henry  PlaucM  Dart. 


We  print  in  this  issue  a  translation  of  Etienne  Mazureau's 
"Panegyric  of  George  Mathews,"  delivered  in  French  in  New  Or- 
leans in  January  1837,  shortly  after  the  death  of  Judge  Mathews. 
This  curious  and  interesting  contribution  to  the  literature  of  that 
day  was  never  translated  into  English.  Mrs.  H.  H.  Cruzat's  pres- 
ent translation  is  spirited  and  very  true  to  the  original.  The  only 
existing  French  copy  that  has  fallen  under  the  writer's  observa- 
tion is  that  contained  in  1st  White's  New  Recopilacion,  678, 
printed  in  1839 ;  and  White's  book  is  almost  as  inaccessible  as  the 
address  which  it  perpetuates.  At  the  period  of  this  address 
(1837)  Louisiana  had  settled  most  of  the  great  legal  problems 
that  arose  out  of  the  difference  between  her  ancient  legal  system 
and  that  of  the  other  states  of  the  Union,  and  Etienne  Mazureau 
had  taken  considerable  part  in  this  settlement.  A  native  of 
France,  he  came  to  Louisiana  in  1801,  young  in  years  but  ripe  in 
political  experience  because  he  had  suffered  for  his  opinions  be- 
fore Napoleon  became  emperor,  and  in  his  own  words,  in  the  ad- 
dress which  we  are  now  publishing  he  "fled  from  the  despotism 
of  the  greatest  Captain  of  modern  times."  His  picture  in  the 
Supreme  Court  portrait  gallery  in  the  New  Court  House  at  New 
Orleans  gives  us  an  idea  of  Mr.  Mazureau  which  is  sustained  by 
the  legends  of  that  period.  It  shows  a  certain  charm  and  grace 
of  manner  that  does  not,  however,  conceal  the  strength  of  char- 
acter and  fiery  zeal  which  filled  his  soul. 


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150  The  Louisiana  Historical  Quarterly 

Very  early  in  his  career  Governor  Claiborne  offered  him  a 
place  on  the  Superior  Court  of  the  Territory  of  Orleans,  which  he 
declined  and  later  he  succeeded  Martin  as  Attorney  General  in 
1813,  immediately  after  Lousiana  was  admitted  to  the  Union.  His 
career  thereafter  was  strictly  contemporary  with  the  develop- 
ment of  civil  life  in  Louisiana  after  the  cession.  To  the  modem 
Louisiana  lawyer  the  principal  value  of  the  "panegyric"  is  the  in- 
timate knowledge  which  it  gives  us  of  contemporary  sentiment 
and  of  the  passions  provoked  by  the  changes  made  in  our  legal 
system  through  the  Digest  of  the  Civil  Law  of  1808  and  the  Civil 
Code  of  1825.  Our  Court  reports  and  general  history  makes  little 
or  no  mention  of  the  controversy  here  presented,  and  we  are  sure 
it  will  have  to  the  majority  of  students  an  element  of  novelty  and 
interest.  As  we  gather  from  the  panegyric  it  was  contended  in 
1808  that  public  policy  required  that  the  French  and  Spanish  laws 
in  force  at  the  time  of  the  cession  of  1803  should  be  "translated 
by  legislative  authority  to  serve  as  a  sort  of  common  law  for  Lou- 
isiana, to  be  developed  in  due  course  by  the  legislature  and  the 
courts  after  the  method  in  which  the  common  law  of  England  and 
the  United  States  was  created  and  developed.  Mr.  Mazureau  says 
this  was  the  opinion  of  Judge  Mathews,  and  he  evidently  held  the 
same  view  himself.  There  is  support  for  it  in  the  statute  under 
which  the  legislature  authorized  the  compilation  of  the  civil  laws 
in  force  in  Louisiana  in  1808,  and  it  is  also  true  that  the  courts 
thereafter  held  that  the  work  was  not  a  code  but  a  digest  of  such 
laws.  It  was  under  this  construction  that  the  Supreme  Court  per- 
mitted reference,  and,  indeed,  insisted  upon  a  reference  to  the 
Spanish  and  French  laws  prior  to  1808  to  interpret  the  Digest  and 
even  to  supply  omissions  therein. 

So  far,  then,  it  would  appear  that  we  have  from  Mazureau's 
pen  a  contemporary  view  of  the  intentions  of  some  of  the  Louis- 
iana lawyers  and  judges  in  regard  to  the  Spanish  and  French 
system,  and  one  would  be  inclined  to  say  that  this  contention  was 
sustained  by  the  very  form  in  which  the  Digest  was  cast.  But 
the  theory  did  not  work  out  in  practice  as  perfectly  as  it  appeared 
when  considered  theoretically,  and  the  Civil  Code  of  1825  was  un- 
questionably designed  to  have  an  end  of  these  foreign  laws;  to 
substitute,  in  short,  a  code  as  a  beginning  of  a  new  system.  It 
would  appear  also  that  this  was  the  parting  of  the  ways  between 
the  old  school  and  the  new,  and  Mr.  Mazureau's  panegyric  is  a 


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Mazureau's  Oration  on  Mathews  151 

very  interesting  reminiscence  of  the  contest  over  the  attempt 
at  code  making  which  ended  adversely  to  his  views  in  1825,  and 
it  is  worthy  of  perpetuation  from  that  point  of  view. 

Our  comment  does  not  exhaust  all  the  points  presented  by 
this  document,  but  before  turning  to  others  we  should  notice 
the  construction  of  the  oration,  which  is  a  fine  example  of  a 
type  that  has  somewhat  lost  its  vogue  among  us.  Here  Mathews 
is  the  text  which  the  speaker  departs  from  and  returns  to  with 
skill  and  art,  distributing  on  the  way  a  fund  of  local  knowledge 
and  a  store  of  information,  and  a  variety  of  opinion  on  many 
subjects,  only  distantly  related  to  the  text,  and  yet  always 
presented  in  a  way  to  keep  in  hand  the  thread  of  the  discourse, 
however  attenuated.  The  method  shows,  we  may  add,  the  char- 
acteristics of  that  period  of  public  speaking,  when  if  was  not  un- 
common, so  we  are  told,  for  the  orator  to  hold  his  audience  for 
hours  under  a  thrall.  In  the  quiet  of  an  evening  off  the  reading 
of  this  particular  oration  may  now  let  us  into  the  secret  of  the 
orator's  art  and  skill,  which  apparently  has  passed  away  from 
the  present  generation. 

The  "panegyric"  is  further  valuable  for  its  local  color  and 
intimate  details  concerning  the  people,  the  courts,  and  the  events 
of  the  first  quarter  century  of  life  in  Louisiana,  and  cannot  fail 
on  this  side  to  be  useful  to  the  historical  student. 

The  eulogy  of  Mazureau  and  the  "discourse"  by  Mr.  Watts 
printed  herewith  has  preserved  for  us  the  history  of  a  very  great 
judge  who  filled  a  large  part  in  the  legal  life  of  Louisiana,  and 
this  introduction  needs  only  a  few  additional  words  to  complete 
the  story  as  told  in  the  two  orations.  Judge  Mathews  was  a 
Georgian,  appointed  by  President  Jefferson  as  one  of  the  three 
judges  of  the  Superior  Court  of  the  Territory  of  Orleans,  and  he 
began  his  judicial  career  on  that  bench  in  New  Orleans  in  May 
1806.  His  colleague  was  John  B.  Prevost  of  New  York,  who 
had  been  sole  judge  up  to  that  period  and  who  retired  in  the 
succeeding  year,  1807.  William  Sprigg  was  appointed  contem- 
poraneously with  Mathews  and  retired  in  1808.  Under  these 
conditions  Mathews  became,  in  1807,  the  President  or  Presiding 
Judge  of  the  Superior  Court,  and  when  that  court  was  abolished 
upon  the  formation  of  the  Constitution  of  1812  and  the  ad- 
mission of  Louisiana  into  the  Union,  Judge  Mathews  was  ap- 


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pointed  by  Governor  Claiborne  to  the  Supreme  Court  of  Louis- 
iana, a  bench  of  three  judges,  namely  Dominick  A.  Hall,  Presid- 
ing Judge,  George  Mathews  and  Pierre  Derbigny,  associate 
judges.  Judge  Hall  retired  after  a  short  service,  and  in  1813 
Mathews  became  the  President  of  the  Supreme  Court  or  Presid- 
ing Judge,  as  it  is  variously  called,  for  they  did  not  use  the  title 
of  Chief  Justice  until  1845.  Martin  became  a  member  of  the 
court  in  1815  and  only  became  presiding  judge  on  the  death  of 
Judge  Mathews  in  1836,  and  notwithstanding  he  is  often  re- 
ferred to  as  the  Chief  Justice  of  Louisiana  he  never  did,  in  fact, 
have  that  title,  which  was  established  after  Judge  Martin  had 
retired  from  the  bench  on  the  adoption  of  the  Constitution  of 
1845.  The  long  service  of  Judge  Mathews,  more  than  thirty 
years,  necessarily  made  him  contemporaneously  an  outstanding 
figure  in  our  history  because  those  courts  (the  Superior  Court 
of '  the  territory  and  the  Supreme  Coutt  of  Louisiana)  played 
a  very  essential  part  in  establishing  bur  law  upon  the  basis  of 
the  Civil  rather  than  the  common  law.  Mazureau  tells  in  his 
address  the  story  of  two  great  efforts  made  in  the  Superior  Court 
of  the  Territory  of  Orleans,  first  before  Prevost  sitting  alone, 
and  afterwards  when  Mathews  came  on  the  bench,  to  settle  the 
controversy  in  favor  of  the  Common  Law,  on  the  theory  that 
Louisiana's  legal  system  necessarily  followed  the  legal  system 
of  the  United  States  as  recognized  in  the  Ordinance  of  1787 
covering  the  Northwest  Territory  which  formed  a  part  of  the 
law  governing  Louisiana  under  the  Congressional  legislation. 

Judge  Mathews'  picture  in  the  Supreme  Court  gallery  bears 
out  Mr.  Mazureau's  eloquent  description  of  his  character,  "a 
rotund  figure  of  even  temper  and  placid  and  genial  characteris- 
tics." His  fame  in  these  later  years  of  our  legal  life  is  some- 
what obscured  by  that  of  his  great  colleague.  Judge  Martin,  but 
no  one  who  understands  the  operation  of  judicial  machinery  can 
doubt  that  Martin's  fame  would  not  be  what  it  is  had  he  not  had 
alongside  of  him  on  the  bench  this  well  balanced  American  law- 
yer, deeply  versed  in  the  traditions  of  the  common  law  but  also 
a  great  admirer  of  the  civil  law,  which  system  he  studied  at  its 
sources,  and  to  which  he  always  turned  for  light  and  guidance. 
The  reputation  of  Mazureau  during  his  lifetime  as  an  able  and 
fearless  lawyer  and  as  a  sound  thinker  was  perpetuated  by  his 
contemporaries  and   by  his  immediate  successors.     When  the 


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Mazureau's  Oration  on  Mathews  153 

writer  began  to  read  law  some  fifty  years  ago  the  name  of  Maz- 
ureau  was  of  equal  dignity  with  the  other  giants  of  that  earlier 
period,  and  the  law  offices  were  full  of  stories  of  his  cases  and 
methods.  In  short,  he  was  then  and  he  is  now  one  of  the  his- 
torical characters  of  Louisiana.  This  "panegyric"  which  we 
here  translate  and  reproduce  made  a  great  contemporary  impres- 
sion. I  cannot  remember  ever  seeing  a  copy  of  it  in  my  younger 
days  but  it  was  often  referred  to  and  always  with  respect  and 
admiration,  and  it  is  really  a  good  idea  to  revive  before  the  people 
of  this  generation  the  memory  of  these  two  men,  this  great 
lawyer  and  equally  great  judge  of  the  early  part. of  the  last 
century. , 


See  for  a  more  extended  accouht  of  the  Superior  Oourt  ahd  the  £3ariler 

History  of,  the  Supreme  Court,  thje  Centenary  proeeedinKS  in,  131,^.  4  La.  His- 
torical Quarterly  pp.  16-37   (Jany.,  1921). 


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GEORGE  MATHEWS— PRESIDENT  OF  THE  SUPREME 
COURT  OF  LOUISIANA. 


Panegyric  Delivered  January,  1837,  by  Etienne  Mazureau,  Attor- 
ney General,  and  Dean  of  the  Bar,  by  Virtue  of  a 
Resolution  Adopted  at  New  Orleans  by 
His  Fellow  Members  Assembled 
Nov.  16,  1836-  (•) 


Gentlemen  and  esteemed  fellow  members: 

Among  our  European  ancestors,  not  so  long  ago,  at  the  death 
of  a  prince  or  of  the  great,  whom  their  birth-right  placed  at  tlie 
head  of  nations,  an  antique  custom  demanded  that,  even  though 
history,  faithful  to  its  mission,  carved  for  them  pages  hardly 
fit  to  recommend  them  to  the  respect  of  future  generations,  they 
be  eulogized  by  great  orators  in  highly  eloquent  panegyrics,  as 
demi-gods  whose  short  course  on  earth  had  been  marked  only 
by  heroic  deeds  and  benefits  worthy  of  the  admiration  and  grat- 
itude of  men.  There,  the  simple  magistrate  appointed  to  the  ad- 
ministration of  justice,  whatsoever  right  he  might  have  acquired 


♦EDITORIAL  NOTE:  Translated  by  Mrs.  H.  H.  Cruzat  from  the  French 
original  as  published  in  1  Whites'  "New  Recopilacion"  pp.  673-701.  Philadelphia, 
1839,  under  the  title,  "PaneyKyrique  de  L'Honorable  George  Mathews,  Presrtdent 
de  la  Cour  Supreme  de  L'Etat  de  la  L.ouislane,  Prononc6  le — Janvier  1837,  par 
Etienne  Mazureau,  Avocat  G^n^ral  et  Doyen  du  Barreau,  En  Vertu  d'une  Re- 
solution adoptee  a  la  Nouvelle-Orleans  par  ses  confreres  assembles  le  16 
Novembre,  1836."  There  is  nothing  to  indicate  where  the  address  was  de- 
livered. The  proceedings  of  the  Bar  Meeting  published  in  10th  Louisiana  Re- 
ports, p.  iv.,  show  that.  In  addition  to  the  formal  Resolution  of  sympathy  a 
special  request  was  made  that  Mr.  Mazureau  and  Judge  Charles  Watts,  of 
the  First  Judicial  District  Court  of  New  Orleans,  prepare  and  deliver  at  their 
convenience  public  orations  upon  the  distinguished  decedent.  Judge  Watts* 
"discourse"  is  printed  following  the  minutes  of  the  Bar  Meeting,  10th  Louis- 
iana Reports,  pp.  iii.  xv.,  but  Mr.  Mazureau'af  is  not  included  therein,  though 
it  is  certain  the  two  addresses  were  delivered  contemporaneously.  It 
is  likely  that  its  length  precluded  its  publication  in  the  official  report.  Mr. 
White,  in  a  brief  note  or  preface  to  the  reproduction  of  the  French  original  in 
the  "New  Recopilacion",  gives  no  information  on  the  point,  but  in  the  Introduc- 
tion to  the  main  work,  Volume  1,  p.  XIV.,  he  states  that  he  obtained  the  manu- 
script from  Mazureau  himself.  We  have,  therefore,  two  views  of  Judge 
Mathews  presented  by  these  two  distinguished  members  of  the  bar,  and  we 
are  inclined  to  think  that  they  may  be  classified  as  representing  two  distinct 
views  of  the  man,  one  Judge  Watts',  from  the  English  speaking  bar  (or  Amer- 
ican lawyers  as  they  were  then  called),  and  the  other  from  the  Creole  or 
French  speaking  bar.  In  the  interest  of  historical  truth  we  think  both  ad- 
dresses should  now  be  presented  together,  and  we  follow  the  translation  of 
Mr.   Mazureau's  by  JTudge   Watts'   "discourse." 

The  foot  notes  to  each  oration  are  those  that  appear  in  the  original,  and 
where  we  have  made  any  additions  they  are  placed  in  brackets.  See  also  Mr. 
Darts'  article  in  this  is'sue  of  the  Quarterly  on  Mazureau's  Oration  on  Mathews. 


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George  Mathews — Pres.  of  the  Supreme  Court  of  La.     155 

to  the  esteem  and  love  of  his  contemporaries,  whatsoever  fine 
and  sublime  examples  he  may  have  left  to  be  followed  for  the 
happiness  of  society,  could  only  go  down  to  the  tomb  ignored  and 
unnoticed,  except  by  those  who  inhabited  the  circumscribed  place 
where  he  had  exercised  his  illustrious  functions.  Custom  for- 
bade that  fame  should  elsewhere  publish  his  virtues  or  his  ser- 
vices, or  that  he  be  the  subject  of  a  f unreal  oration  destined 
to  perpetuate  his  memory.  Considered  as  the  creature  or  in- 
strument of  the  prince,  of  a  Lord  High  Judge,  he  had  no  striking 
personal  merit,  to  these  were  attributed  the  love  and  respect  that 
he  had  known  how  to  inspire  for  justice  and  for  the  laws,  as  well 
as  the  union  and  concord  which  his  wisdom  had  caused  to  reign 
in  his  country.  These  masters  of  the  people  were  the  heirs  of 
his  glory.  They  received  as  a  legitimate  tribute  the  praises  and 
homages  due   solely  to  his  virtues  and  to  his  examplary  conduct. 

Amongst  us.  Gentlemen,  it  is  fortunately  not  thus.  Amongst 
us  the  virtues  and  vices,  the  good  and  bad  actions  of  individuals, 
whoever  they  be,  are  entirely  personal;  the  merit  or  the  blame 
belongs  to  them  exclusively.  The  highest  in  the  exercise  of  power 
is  not  and  cannot  be,  before  the  whole  of  society,  else  but  a  crea- 
ture of  the  law,  a  proxy  accountable  for  all  his  acts  to  the  people, 
his  sovereign  sole  source  of  all  authority  and  of  all  legitimate 
power.  We  honor  him  when  he  is  worthy  of  praise  and  he  is 
consigned  to  oblivion  when  he  has  not  justified  the  confidence 
vested  in  him;  and  the  merits,  the  services  and  the  virtues  of 
no  other  functionary  could  make  him  live  in  our  memory,  nor 
serve  as  a  passport  towards  posterity. 

Therefore,  Gentlemen  and  fellow  members,  without  hypo- 
bole,  we  may  say  that  the  assembly  which  you,-  in  this  moment 
constitute,  is  truly  edifying,  if  we  compare  it  to  those  pompous 
ceremonies  to  those  brilliant  obligatory  concourses  of  superb  cour- 
tiers, where,  using  the  expression  of  a  celebrated  writer,  "An 
orator  whom  no  one  believed,  speaking  of  virtues  in  which  he  dfB 
not  more  believe,  endeavored  for  a  moment  to  be  impassioned  for 
that  which  was  sometimes  contemptible  to  the  public  and  to  him- 
self, harmoniously  heaping  up  mercenary  lies,  praising  the  dead 
at  length  in  order  to  be  himself  lauded  or  recompensed  by  the 
living." 

Assembled  in  this  hall  by  your  will  alone,  you  have  but  one 
desire,  to  render  a  just  homage  to  truth,  to  acquit,  as  much  as 


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156  The  Louisiana  HistpricalQiiarterly 

it  is  in  us  to  do  so,  a  sacred  debt,  in  honoring  the  memory  of  a 
good  citizen  who  served  his  country  with  zeal,  whom  you  have 
all  known,  whom  you  have  all  been  in  position  to  appreciate, 
who,  whilst  exercising  in  your  midst  the  thorny  duties,  the  deli- 
cate functions  of  the  magistracy  during  a  third  of  a  century, 
fecund  in  events  the  influence  of  which  left  a  strong  imprint  on 
men,  on  their  morals  and  their  fortunes,  must  necessarily  have 
displeased  more  than  one  Jitigant,  hurt  the  self  love  and  frus- 
trated the  expectations  of  many  amongst  us,  and  who,  notwith- 
standing, has  carried  to  the  tomb  our  esteeip  and  the  well  de- 
served regrets  of  all  honest, folks  and  of  all  good  citizen^.  There 
is  here  wanting,  gentlemen,, for  the  fulfilment  of  your  views,  but 
an  eloquent  tongue  to  recqrd  with  accuracy  the  distinguished 
qualities  and  the  rare  merit  of  their  virtuous  magistrate,  as 
we,ll  as.  the  impprtant  services  he  rendered  to  the  State. 

...  On  hearing  these  last  wor^s,  dejgn  not  to. accuse  me  of  the  pu- 
erile intention  of  hiding,  uncjer  the  veil  of  feigned  modesty,  confi- 
dence which,  if  ypunger,  I  might  have  had  in  my  own.  strength. 
Having  reached  the  age  of  sixty,  and  after  having  devoted  almost 
tw(/ thirds  of  my.  existence,  to  the  defense  of  litigious .  rights, 
rarely  susceptible  of  inspiring  fine  oratory,  and  often  capable  of 
chilling  the  most  poetic  imagination,  I  could  not  truly  be  weak 
enough  to  believe  myself  endowed  with  the  talent  or  the  elo- 
quence required  to  acquit  myself  honorably  in  the  panegyric  of 
an  illustrious  man. 

I  felt  it,  Gentlemen  and  fellow  members,  when  (probably  to 
show  me  deference  as  your  dean)  you  appointed  me  to  be  one  of 
the  interpretors  of  your  sentiments  towards  the  excellent  Judge 
whose  loss  we  deplore ;  and  you  may  recall  that  it  was  only  after 
much  hesitancy  that  I  decided  to  accept  this  honorable  task, 
which  my  weakness  dreaded,  but  which  I  would  eagerly  hive 
sought,  had  it  been  less  imposing  or  more  analogous  to  the  tal- 
ents which  nature  may  have  bestowed  on  me,  or  to  those  which 
I  have  had  occasion  to  cultivate  in  the  exercise  of  our  profei^ 
sion. 

I  still  feel  at  this  moment.  Gentlemen,  and  however  disposed 
you  may  be  to  treat  me  with  indulgence,  I  shall  not  dissimulate 
that  the  uneasiness  of  my  self  love  is  far  from  being  dispelled. 
But,  having  witnessed  during  thirty  years  the  distinction  with 
which  honorable  George  Mathews  fulfilled  the  duties  of  his  place, 


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George  Mat%'^i)(}»^Pf'e^ytifthe'Swprem\^  Gimrt  of  La.     167 

as  ^Vfel^AS  the  ntiirierous'vidSSitttdeS'Whidh  dvillegislfetion  under^ 
went'  fn  thit  I6ng"t>^rt6d5'  dh  atl^ntive  "Mid  often  altoniedf/ofc- 
servef  of  the  dkhgets  '  which  love  '  of  innovatiofir  '  awatinually 
stret^ed  on  his  way^andon  thatof  his  worthy- collea^eB;  imbued, 
as  I  'Am,  with  the  knowledge  of  the  important  services  which  'Lou- 
isiana owes  to  his  rare  Impartiality  and-  his  exieellent  judgment, 
to  his  persevering  zeal  for  justice;  if  I  have  been  bound  not  to 
dream  of  delivering  one  of  those  brilliant  discourses  that  charm 
by  the  grace  of  style  and  the  richness  of  elocution,  one  of  those 
panegyrics  in  conformity  to  the  laws  of  style,  in  which  the  en- 
thusiastic and  fecund  imagination  of  the  orator  exercises  and 
nobly  displays  its  treasures,  in  the  interest  of  his  own  glory  as 
much  as  in  the  interest  and  glory  of  his  hero ;  I  would  be  wanting 
in  sincerity  if  I  did  not  acknowledge  that,  a  plain  narrator,  I 
hope  to  interest  you  by  recalling  some  of  the  claims  this  justly 
regretted  magistrate  established,  by  his  conduct  and  his  doc- 
trines, to  the  respect  and  gratitude  of  every  good  citizen  of 
Louisiana.  Moreover,  gentlemen,  may  the  considerations  fol- 
lowing from  the  facts  which  I  shall  endeavor  to  group,  and  a  few 
truths  that  some  of  you  will  hear  for  the  first  time,  have  the 
twofold  result  of  Stimulating  fine  souls  who  are  inclined  to  fol- 
low the  footsteps  of  this  illustrious  public  functionary,  and  to 
incite  some  functionaries  of  the  state,  who,  I  fear,  are  indiffer- 
ent to  what  does  not  carry  with  it  a  tangible  reward,  to  strive 
to  avoid  censure  from  their  contemporaries,  or  the  brand  of 
reprobatory  silence  by  posterity.  Such  is  my  sole  wish  at  this 
moment,  and  if  it  be  not  sterile,  I  shall  believe  that  I  have  not 
failed  in  the  task  which  it  has  pleased  you  to  assign  to  me. 

The  Hon.  George  Mathews  owed  his  birth  to  honest  and  re- 
spectable parents,  residents  of  Virginia  that  has  become  so  justly 
celebrated  for  the  brilliant  constellation  of  great  men  she  gave 
the  republic.  His  mother,  a  few  months  gone  with  child,  at  the 
time  of  the  memorable  expedition  which  terminated  the  battle 
at  the  mouth  of  the  great  "Kanawah",  brought  him  into  the 
world  on  the  30th  of  September  1774,  in  Augusta  County,  whilst 
his  father,  in  this  expedition,  was  exposing  his  life  for  the  de- 
fense of  his  country,  and  was  attracting  notice  by  his  unusual 
courage,  admirable  presence  of  mind  and  surprising  correctness 
of  foresight,  which  in  a  short  time  caused  his  companions  in 
arms  to  attribute  to  him  the  most  prominent  part  and  in  some 


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158  The  Louisiana  Historical  Quarterly 

sort,  the  whole  glory  of  that  splendid  day,  famous  day,  which 
showed  what  the  heroic  valor  of  civilized  man,  fighting  to  pro- 
tect a  cherished  family  and  to  save  a  field  cultivated  by  his 
hands,  can  do  against  savage  hordes  who  only  know  how  to 
destroy,  and  who  have  no  other  enjoyment  than  carnage. 
From  the  moment  of  his  birth  to  the  age  of  ten  years,  his  mother 
whom  they  loved  to  distinguish  among  her  virtuous  companions 
for  superiority  of  mind  and  excellent  judgment,  and  for  the 
most  amiable  qualities  of  heart,  took  full  charge  of  his  education. 
Continuously  in  the  services  of  his  country,  his  father  who  sel- 
dom had  the  happiness  of  pressing  him  to  his  bosom,  trusted  and 
fully  relied  on  that  beloved  wife,  convinced  that  she  could  not 
fail  to  inculcate  lessons  that  would  one  day  make  their  cherished 
son  a  useful  man  to  his  country.  And,  to  what  better  hands 
could  a  father  intrust  the  task  of  awakening  in  the  heart  of  th^ 
young  child  of  his  chaste  love,  principles  of  honor  and  virtue? 
Do  not  women,  to  the  highest  degree,  possess  the  art  of  inspiring 
to  early  childhood  a  taste  for  the  greatest  and  noblest  things? 

Deprived,  by  death,  of  the  lessons  and  examples  of  his  excel- 
lent father  at  the  early  age  of  ten  or  eleven  years,  was  not  the 
immortal  Washington  raised  by  the  woman  who  had  carried  him 
in  her  chaste  womb.'  Was  he  not  indebted  to  the  tender  care 
and  constant  sollicitude  of  that  model  of  mothers  for  the  fine 
sentiments  and  austere  patriotic  virtues  which  distinguished 
him  in  every  circumstance  of  his  noble  life,  and  imprinted  on  him 
that  indelible  stamp  of  true  greatness  which  caused  him  to  be 
proclaimed:  "The  first  in  war,  the  first  in  peace  and  the  first 
in  the  hearts  of  his  fellow  citizens.^' 

How  many  men  have  appeared  with  eminence  on  the  vast 
scene  of  the  world  who  probably  would  have  lived  and  died  ig- 
nored had  they  not  had  as  a  Mentor  of  their  youth  that  sex 
worthy  of  all  our  respect  as  well  as  of  our  best  affections,  unit- 
ing as  it  does  exquisite  sensibility  of  heart  to  the  irresistable 
charms  of  beauty,  vivacity  of  mind  and  a  profound  sentiment 
of  proprieties;  and  that  the  Eternal  created  after  our  own  only 
because  in  His  infinite  wisdom  He  reserved  His  most  interesting 
work  to  crown  and  embellish  the   whole  of  nature! 

In  1785  Mr.  George  Mathews'  father,  left  Virginia  with  his 
whole  family,  to  take  up  his  residence  in  Georgia,  in  the  coun- 
ty which  was  then  called  Wilkes,  and  which  has  since  become 


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George  Mathews — Pres.  of  the  Supreme  Court  of  La.     169 

Oglethorpe.  The  son,  at  that  time  was  only  eleven  years  old. 
The  place  where  he  resided  until  1792,  offered,  as  the  other 
frontier  countries,  scanty  resources  for  the  instruction  of  youth. 
His  parents  however  sent  him  to  the  schools  opened  there,  and 
there,  under  their  eyes,  he  continued  the  respectable  studies,  in 
which  his  mother  had  prepared  him  and  which  she  never  ceased 
to  watch  over. 

On  his  return  to  Virginia,  in  1794,  he  entered  the  academy 
known  as  Liberty  Hall,  in  the  city  of  Lexington,  in  Rock-Bridge 
county,  where,  in  the  course  of  the  following  year,  he  terminated 
his  classical  studies  under  the  best  professors  of  the  time,  and 
in  1796,  he  rejoined  his  family  in  Georgia.  The  welcome  ex- 
tended to  him  by  his  excellent  parents  when  they  again  saw  him, 
was  such  as  a  loving  and  respectful  son,  who  had  fulfilled  all 
their  expectations  might  desire.  Sensible  and  obliging,  his  only 
joy  and  his  only  happiness  were  to  deserve  by  his  good  conduct 
and  delicacy  of  behavior,  the  love  of  which  they  gave  continual 
proofs,  and  their  will  was  a  law  with  which  he  promptly  com- 
plied. 

In  early  years  he  had  had  a  decided  inclination  to  the  study 
of  medical  sciences.  The  exquisite  goodness  of  his  heart  per- 
suaded him  that  in  this  fine  profession  he  would,  more  than 
others,  be  able  to" be  useful  to  humanity;  but  his  respectable 
father  with  the  extreme  sagacity  and  solid  judgment,  which  he 
evinced  in  all  circumstances,  persuaded  him  that  he  was  mistaken 
on  his  real  vocation,  insisted  on  his  turning  his  views  towards  the 
Bar  and  make  up  his  mind  to  give  himself  up  to  the  study  of 
law. 

Barring  this  remarkable  incident,  though  simple  in  itself,  the 
United  States  would  probably  have  numbered  George  Mathews' 
son  among  the  celebrated  physicians  for  that  worthy  citizen,  that 
estimable  magistrate,  amidst  his  numerous  labors  never  ceased 
showing  a  special  taste  for  the  art  of  curing,  and  a  real  aptitude 
to  exercise  it  with  success.  But  if  in  pursuance  of  his  own 
inclination  he  had  become  a  Doctor  of  medicine,  Louisiana  would 
not  have  had  the  honor  to  number  him  amongst  her  best  judges. 
It  was  then  in  conforming  with  his  father's  wishes  that  in  1T96 
he  began  under  John  Mathews,  his  elder  brother,  the  study  of 
law,  and  two  years  later  he  went  to  Augusta,  where,  under  the 
direction  of  George  Walker,  one  of  the  most  eminent  lawyers  of 


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Georgia*  he,  cwtin^^.d  hj^s  Jeg^J,  st^di^s^,  Su<?h  yjras  the,^r,dor  l?e 
brough.tjto,1;heijn,aj^.t^he jfeciljty, ,with  wbjch  bis. f:^re  int?Uigei>ee 
ov^rcamp  all  di^cijltie^  thflt  iix  ^7^?  ^^  ^^^  adni,itteif^  to  the  Bar, 
and  in ^  short  ti?ne,.vaa, esteemed  for  his  skill  as  well  as  for  the 
gentleness  of  his.  manners  and,  the  purity  of  his  principles.,  It 
wag  there  that  in  1805,  exclygively  applied  to  the  cares  of  his 
profession,  he  was  distinguished  by  the  illustrious  Thomas  Jef- 
ferson, who,  without  his  expecting  it,  appointed  him  Judge  of  the 
Superior  Court  of  the  Territory  of  Mississippi.  Such  a  tribute 
offered  by  such  a  man  to  the  virtues  and  knowledge  of  a  young 
civilian,  is,  without  contradicti9n,  the  highest  praise  that  may 
be  bestowed  on  him. 

It  was  a  fine  time,  Gentlemen,  when  the  functions  of  magis- 
tracy were  thus  offered  to  merit !  There  were  then  many  more 
to  fill  than  indefatigable  solicitors  to  provide.  If  knowledge  had 
not  made  all  the  progress  of  which  our  brilliant  epoch  glorifies 
itself,  one  learned,  one  studied  long  in  order  to  be  proficient; 
after  having  learned  one  was  but  more  modest ;  they  avoided  cut- 
ting questions  short,  and  posing  as  learned,  they  distrusted  them- 
selves and  dreaded  responsibility.  On  the  other  side  they  were 
less  opulent,  and  the  son  did  not  blush  in  exercising  the  useful 
trade  of  his  estimable  father.  Gold  and  power  did  not  dispense 
of  all  merit,  did  not  inflame  ambitions ;  but  were  we  less  happy, 
less  estimable,  less  free,  less  republican? 

At  this  same  period  and  since  the  end  of  1804,  the  territory  of 
Orleans  was  organized.  Its  charter  was  that  of  1T87,  made  for 
the  territory  situated  northwest  of  the  Ohio.  By  virtue  of  this 
ordinance  which  put  an  end  to  the  dictatorship  of  an  American 
governor  provisionally  invested  with  the  powers  of  a  captain 
general  of  a  Spanish  colony,  and  who  had  bravely  put  himself 
up  as  a  legislator.  (1)  A  tribunal  decorated  with  the  title  of 
Superior  Court  was  established  at  New  Orleans.  A  single 
judge,  instead  of  three  of  which  it  was  composed,  rendered  jus- 
tice. That  judge  was  the  Hon.  John  B.  Prevost,  a  magistrate 
as  commendable  for  his  knowledge  as  seducing  by  the  beauty 


(1)  William  C.  C.  Claiborne,  sent  here  with  hi^  immense  powers,  did  not 
limit  himself  to  administering  according  to  law,  of  which,  by  reason  of  his 
powers,  he  knew  little  or  nothing  at  all.  He  made,  under  the  title  of  ordS 
nances,  laws  by  which  he  created  first  a  Court  of  Common  Pleas,  then  the 
Bank  of  Louisiana.  Never  would  a  captain  general  have  thus  dared  exercise 
the  sovereign  power.  We  do  not  arraign  this  honest  man.  He  went  too  far, 
but  what  navigator  who,  cast  upon  the  ocean  without  compass,  without  charts, 
without   instruments,   could   conduct   his   ship   to   port  without  accident? 


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George  Mathews-^Pres.  of  the  Supreme  Court  of  La.     161 

of  his  person  and  his  gentle  and  polite  manners,  who,  until  1806, 
to  the  satisfaction  of  the  Bar  and  of  the  whole  of  society,  fulfilled 
tne  numerous  and  difficult  functions  of  civil  and  criminal  judge 
of  last  resort.  This  man  justly  respected  as  long  as  he  inhabited 
this  country,  died  a  few  years  after  whilst  fulfilling  a  diplomatic 
mission  in  South  America,  amongst  a  nation  who  called  them- 
selves christians  because  they  had  been  baptized,  and  republi- 
can because  they  had  sundered  the  ties  which  previously  bound 
it  to  antique  Spain ;  but  who  was  as  incapable  of  understanding 
and  practicing  the  divine  precepts  of  charity  taught  by  the  Gospel 
as  it  is  still  at  this  day  incapable  of  governing  itself  by  the  prin- 
ciples of  a  wise  liberty.  Ah!  If  from  the  sublime  regions 
where  the  Eternal  has  His  throne,  John  B.  Prevost,  (that  estim- 
able magistrate  to  whom  Louisiana  on  more  than  one  score  owes 
gratitude)  may  hear  my  weak  words,  he  will  do  me  the  justice  to 
think,  that  if  it  depended  solely  on  me  to  avenge  the  outrage  to 
his  corpse  by  the  fanatics  among  whom  he  breathed  his  last 
breath,  their  odious  names  would  go  down  to  posterity  branded 
and  execrated!  The  barbarians!  To  refuse  sepulture  to  a  man, 
to  a  Christian,  to  the  representative  of  a  friendly  nation,  because 
he  did  not  adore  the  Eternal  in  the  same  manner  as  they  I 

Honorable  George  Mathews  exercised  the  functions  of  judge 
of  the  Territory  of  Mississippi  until  the  year  of  1806.  It  would 
be  difficult  to  deny  the  claims  he.  acquired  to  public  esteem  and 
confidence,  when  one  recalls  that  he  left  this  place  only  to  occupy 
another,  by  virtue  of  a  new  commission  of  the  same  President 
Jefferson,  at  the  side  of  John  B.  Prevost,  who  remained  Presi- 
dent, and  of  William  Sprigg,  who  has  just  been  appointed. 

He  arrived  among  us  on  May,  1806,  and  on  the  19th  of  this 
month,  after  having  been  sworn  in,  took  possession  of  the  place 
before  a  large  audience  whose  faces  expressed  the  confidence 
which  his  open  and  frank  countenance  inspired. 

Shall  I  say  that  however  satisfied  the  people  might  have  been 
with  the  wisdom  of  the  magistrate  who  had  presided  over  our 
Superior  Court,  they  appeared  still  more  confident  over  the 
future.  This  feeling  was  dissimulated  by  none,  though  it  was 
generally  acknowledged  that  John  B.  Prevost's  conduct  had 
proven  the  axiom:  "Sole  judge,  Iniquitous  judge,"  taken  from 
the  nations  otherwise  governed  to  be  untruthful  in  such  a  coun- 
try as  ours,  ruled  by  written  laws,  endowed  with  that  fine  insti- 


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162  The  Louisiana  Historical  Quarterly 

tution,  the  jury,  and  placed  under  the  safeguard  of  publicity.  1 
cannot  but  mention  though  the  deportment  and  outward  appear- 
ance of  the  judges  who,  until  then,  had  occupied  the  bench,  was 
always  respectable;  the  citizens  thought  that  the  appearance  of 
Honorable  George  Mathews  gave  a  more  imposing  aspect  to  the 
Court.  Now,  this  opinion  became,  in  some  sort,  another  se- 
curity for  public  order,  as  well  as  a  new  source  of  confidence 
and  security  for  litigants,  and  man  in  all  countries  is  such  that 
what  at  first  sight  pleases  the  eyes  generally  produces  a  favor- 
able impression  on  his  mind;  and  that  he  naturally  associates 
ideas  of  probity  and  delicacy  with  all  that  breathes  cleanliness, 
decency  and  dignity.  Observation  teaches  us  that  the  public 
man  who  is  careless  of  his  carriage  and  external  appearance,  by 
this  alone,  often  compromises  the  respect  with  which  it  is  ad- 
vantageous that  he  be  encompassed.  It  is  even  evident  that  a 
great  reputation  for  talents,  wisdom  and  integrity  is  not  suffi- 
cient to  counterbalance  this  fault  or  to  allow  it  to  be  forgiven. 
In  all  places,  it  is  the  lesser  number  who  abstain  from  judging 
the  tree  otherwise  than  by  its  fruits;  the  masses  always  less 
wise,  or  less  enlightened  everywhere  stop  at  the  bark. 

Almost  as  soon  as  he  arrived  amongst  us.  Honorable  George 
Mathews,  as  penetrated  as  any  with  the  holiness  of  his  duties, 
discovered  all  the  difficulty  of  the  task  before  him.  That  he 
had  made  his  classical  studies,  that  consequently  the  language  of 
Justinian  was  not  new  to  him,  that  he  had  studied  law,  and  that 
the  science  of  justice  and  injustice  found  in  him  a  tried  adept, 
he  felt  that  French,  which  all  Louisianians  spoke,  that  Spanish 
in  which  all  the  civil  laws  of  the  country  were  written,  demanded 
new  studies  of  him. 

Such  was  his  prompt  determination  on  the  subject,  and, 
above  all,  such  was  his  admirable  aptitude  at  learning,  that,  in 
a  short  time,  his  ear  became  familiar  with  French  and  Spanish 
to  the  point  of  excusing  the  lawyers,  who  were  not  proficient  in 
his  own  language,  from  trying  to  plead  in  it  before  him:  "Speak 
French,  read  your  authors  in  Spanish,"  he  would  say,  *1  will 
understand  you."  You  feel,  Gentlemen,  how  encouraging  were 
these  words,  how  agreeably  they  resounded  in  the  hearts  to 
which  they  were  addressed !  You  may  also  conceive  what  flat- 
tering expectations  the  Louisianians  drew  from  such  a  proof  of 


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George  Mathews — Pres.  of  the  Supreme  Court  of  La.     163 

devotedness  to  their  interests,  by  a  judge  whom  they  knew  to  be 
a  stranger  to  their  n^anners  and  customs  and  to  their  laws,  and 
perhaps  amidst  the  perplexities  under  which  they  naturally  la- 
bored after  two  rapid  changes  of  domination,  operated  without 
their  consent,  they  looked  upon  as  an  instrument  by  which  they 
would  be  reduced  to  insignificance  in  their  natal  land,  discovered 
and  established  by  their  ancestors. 

Not  solely  to  the  study  of  languages  did  he  consecrate  his 
nights;  that  of  our  laws  was  the  special  object  of  his  constant 
attention.  His  progress  in  them  was  equally  remarkable,  and 
all  the  prejudice  he  may  have  brought  here  against  the  Roman 
law  and  the  Spanish  codes  rapidly  made  way  to  just  admiration. 
"The  more  I  read  the  Roman  laws,  the  more  I  am  convinced  that 
the  name  of  written  reason,  given  them  by  the  learned  and  the 
wise,  is  the  best  definition  that  they  could  give  of  them."  Such 
was  his  way  of  expressing  himself ;  and  such  words  from  a  man 
endowed  with  so  sane  a  judgment  assuredly  had  much  weight. 
These  words  he  never  contradicted  to  his  death,  if  any  one  sin- 
cerely deplored  our  constant  inclination  for  innovations,  it  was 
certainly  the  Hon.  George  Mathews. 

And  how  could  he  have  thought  or  acted  otherwise?  Civil 
laws,  (and  under  this  name  I  do  not  want  to  include  the  arbi- 
trary laws  which  can  have  but  a  relative  merit,  and  which  may 
vary  according  to  the  form  of  government,  the  organization  of 
the  tribunals,  and  the  manners  and  customs  of  nations),  the 
civil  laws  which  regulate  contracts,  agreements  and  obligations, 
are  naught  but  the  rules  of  common  sense  adopted  by  that  per- 
fected reason  which  we  call  justice.  If  the  proof  were  de- 
manded, I  would  say,  "Read  and  meditate  on  the  Treatise  of  Obli- 
gations by  Pothier."  This  excellent  treatise,  in  which  are 
classed,  in  perfect  order,  the  principles  of  Roman  law  on  these 
immense  matters,  is,  at  the  same  time,  the  best  code  of  practical 
morals  that  a  man  may  study.  Therefore,  as  a  learned  English 
civilian  has  nobly  proclaimed,  its  rules  are  followed  as  law  at 
Westminister  as  well  as  at  New  Orleans.  Moreover,  let  us  state. 
Gentlemen,  that  this  immortal  work,  of  which  the  first  transla- 
tion into  English  was  made  by  one  of  the  most  learned  magistrates 
of  our  country,  is  an  authority  among  almost  all  of  the  truly  en- 
lightened nations  of  the  world,  who  in    appropriating   it    have 


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164  The  Louisiana  Historical  Quarterly 

rendered  a  just  homage  to  the  merit  of  the  author  as  well  as  to 
the  wisdom  of  the  Roman  laws.  (2) 

To  say  that  Hon.  George  Mathews  was  always  particularly 
distinguished  for  the  solidity  of  his  judgments  might  be  express- 
ing it  with  too  much  partiality  towards  him  and  not  enough  jus- 
tice to  his  colleagues.  But  as  he  loved  to  grant  to  fine  qualities 
the  eulogy  they  deserved,  those  have  never  failed  to  give 
in  his  favor  the  most  honorable  testimony;  how  often  have  we 
not  heard  them  declare  that  none  were  more  highly  gifted  with 
sagacity?  How  often  have  they  not  said  that  in  their  delibera- 
tions he  always  astonished  them  by  the  extreme  facility  with 
which  he  appreciated  the  true  rierits  of  a  controversy  and  disen- 
tangled the  important  point  to  examine  amidst  all  incidental 
questions  with  which  the  error  or  genius  of  sophistry  had  suc- 
ceeded in  covering  it?  And  what  more  satisfactory  proof  could 
be  required  to  show  the  penetration  of  his  mind,  the  excellence 
of  his  judgment,  the  solidity  of  his  principles  and  his  invariable 
love  for  justice,  than  his  written  verdicts?  Have  we  not  always 
noticed  in  them  more  desire  to  speak  as  a  judge  than  ostenta- 
tiously, to  decide  a  question  rather  than  to  exhibit  the  talents 
necessary  for  its  development,  disdaining  all  ambitious  display 
of  knowledge  as  well  as  all  vain  subtleties,  in  which  wit  some- 
times shines  at  the  expense  of  sane  reason;  attaching  more  im- 
portance to  the  substance  than  to  the  form;  his  decisions,  with- 
out ever  offending  the  textual  arrangements  of  the  law,  always 
bore  the  seal  of  equity.  Let  us  not  hesitate.  Gentlemen,  to  bear 
this  testimony.  It  was  really  through  his  zeal  for  all  that  is  just 
and  equitable  that  he  was  distinguished  on  the  judge's  bench 
from  the  first  day  he  occupied  it  until  the  memorable  epoch, 
when  recognizing  that  our  republican  education  had  sufficiently 
progressed,  the  arbiters  of  our  political  destinies  decided  to 
liberate  us  from  territorial  tutelage  and  literally  fulfill  the  con- 
ditions of  the  treaty  of  cession  in  admitting  us  into  the  Union, 
with  the  proviso  of  abandonment  of  all  our  rights  to  our  vacant 
lands !  By  this  same  persevering  zeal  he  gained  our  esteem  and 
our  confidence  from  the  time  of  the  organization  of  our  Su- 
preme Court  until  the  moment  when  death  snatched  him  from  us 
and  plunged  his  family  into  desolation  and  mourning. 


(2)  The  Honorable  Francoiaf  Xavler  Martin.  (He  translated  Pothler  on 
Obligations  from  the  book  to  the  printer's  case;  set  it  up  himself  at  Newbem, 
North  Carolina,  where  the  book  was  published  in  1802.) 


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George  Mathews — Pres.  of  the  Supreme  Court  of  La.     165 

Nature  which  had  made  George  Mahtews  a  thoroughly  just 
man,  had  moveover  endowed  him  with  great  wit,  with  unusual 
gaiety  of  character,  and  with  a  deep  fund  of  sensibility.  Among 
his  intimates,  without  seeming  to  be  aware  of  it,  he  lent  a  cer- 
tain charm  to  the  most  unimportant  conversations  by  a  fund  of 
original  sallies  and  new  thoughts,  smart  replies  and  witty  jests 
which  stimulated  without  offendng.  On  the  bench,  though,  he 
was  generally  serious  enough,  by  a  single  witticism  or  a  jesting 
remark,  he  was  often  known  to  shed  on  the  driest  and  most 
aridly  fatiguing  pleadings,  a  sort  of  vivaciousness,  plajrfulness 
and  grace,  which  far  trom  causing  any  prejudice  to  the  debates 
or  to  the  development  of  the  question,  in  a  way,  threw  new  light 
on  them  and  made  them  easier  by  relaxation  of  the  mind.  If, 
by  specializing,  I  did  not  fear  to  stir  up  painful  memories,  I 
would  confine  myself  to  saying  that,  in  criminal  cases,  an  affect- 
ing situation  cleverly  brought  in  by  an  eloquent  defender  never 
failed  to  move  him  prof oundly :  I  shall  say  that  on  such  occasions 
I  have  seen  his  eyefe  fill  with  tears  whilst  certain  orators  possess- 
ing the  art'  'of  exciting  the  tenderest  emotions  of  the  heart  en- 
deavored to  insj>ire  noble  and  tender  sjmipathies  in  favor  of 
fathers  of  families  so  unfortunate  as  to  be  Accused  of  capital 
crimed.  Biit'I  shall  say  that  I  saw  him  sob,  even  suffocate,, 
whilst  pronouticing  the  terrible  sentence  of  the  law  on  the  guilty 
culprits!  Oh!  He,  though  a  judge,  had  not  forgotten  th^t  he  was 
a  man,  and,  ^th  assurance,  it  may  be  stated  that  "nothing  af- 
fecting humanity  was  strange  to  him!''  And  let  it  not  be  sur- 
mised that  his  strong  sensibility  interfered  with  the  firtnness 
of  his  soul.  No  doubt,  there  are  here  more  persons  than  one 
having  like  myself  observed  to  what  degree  he  allied  one  to  the 
other,  and  conciliated  certain  deferences,  certain  decorum,  with 
the  dignity  of  his  place  and  the  profound  consciousness  of  his 
duties. 

At  a  memorable  epoch  when,  in  the  midst  of  peace,  we  saw  the 
Constitution  of  the  United  States,  our  charter,  our  laws  and  in- 
dividual liberty  audaciously  violated  by  a  military  chief,  a  soldier 
of  the  revolution ;  this  chief,  whose  renown  was  formerly  and 
is  at  this  day  variously  considered,  had  to  appear  before  our  su- 
perior court  by  virtue  of  a  writ  of  "habeas  corpus"  issued  against 
him  to  compel  him  to  render  an  account  of  his  motives  in  arrest- 
ing citizens  protected  by  our  laws,  and  in  detaining  them  against 


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166  The  Louisiana  Historical  Qiuirterly 

their  will.  He  appeared  before  it  in  his  brilliant  uniform,  wear- 
ing his  redoubtable  sword,  and  followed  by  a  cortege  of  aides- 
de-camp  and  of  other  officers,  armed  as  himself  and  whose  mar- 
tial bearing  perhaps  left  no  doubt  of  their  noble  devotion  to 
the  laws  of  their  country,  but  particularly  to  their  illustrious 
general. 

Honorable  George  Mathews  was  on  the  bench.  This  strange 
spectacle  in  the  temple  of  justice  was  a  surprise  to  him  as  well 
as  to  all  true  friends  of  our  institutions;  but  he  was  certainly 
not  in  the  least  shaken  by  it.  In  response  to  the  writ  of  the 
court,  a  discourse  as  pompous  as  jesuitistical  was  delivered,  in 
which  the  titles  of  "general  and  commander-in-chief  of  the  mil- 
itary division"  were  frequently  repeated  with  complacency  and 
emphasis  and  pronounced  in  a  solemn  tone.  This  discourse 
ended  by  an  insolent  acknowledgment  that  the  arrests  and  im- 
prisonments had  been  made  on  the  sole  orders  of  the  general, 
who  accepted  the  responsibility  of  all  the  consequences  of  their 
detention.  He  was  heard  with  that  calm  and  impassibility 
.which  characterize  real  judges,  but  as  soon  as  the  last  word  had 
been  uttered,  as  the  audience  expected,  the  court  declared  that 
the  defense  was  not  sufficient  to  satisfy  the  law  which  could  not 
recognize  the  rights  of  a  general  to  arrest  citizens..  This  was 
not  the  result  expected  by  the  author  of  a  discourse  so  care- 
fully prepared  and  delivered  with  so  much  self  confidence  and 
arrogance.  And  in  fact,  could  it  be  supposed  that  in  a  small 
city,  erstwhile  under  the  sceptre  of  an  arbitrary  king,  situated 
at  a  distance  of  five  hundred  leagues  from  the  seat  of  the  gen- 
eral government,  without  immediate  means  of  protection,  there 
could  be  found  a  tribunal  faithful  enough  to  its  duties,  friendly 
enough  to  liberty  and  sufficiently  energetic  to  oppose  a  general, 
vested  with  full  military  power,  when  he  went  beyond  the  laws. 
An  increase  of  audacity  became  necessary  and  renewed  efforts 
indispensable  to  crown  the  work  of  oppression.  It  was  at  once 
felt,  for  military  instinct  never  errs  when  it  contends  against 
civil  order!  And  suddently  the  dome  of  the  temple  of  justice 
resounded  with  an  insulting  diatribe,  not  directly  aimed  at  the 
judges  but  at  the  lawyer  who  had  dared  to  solicit  the  protective 
writ.  Invectives,  boasts,  calumnies,  threats  were  by  turn  i^e- 
sorted  to,  and,  in  order  to  insure  the  triumph  of  the  sword  over 
the    toga,  they  loudly  declared,  with  looks  flashing  with  anger. 


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George  Mathews — Pres.  of  the  Supreme  Court  of  La.     167 

that  the  lawyer  of  the  prisoners  and  whosoever  dared  to  uphold 
them,  "without  regard  for  position  or  rank  in  the  country,"  would 
be  treated  as  accomplices  of  the  traitors  whom  public  safety  had 
made  it  necessary  to  deprive  of  liberty.  Oh!  you,  fellow  mem- 
bers who  hear  me,  and  who  perhaps  believe  you  have  conceived 
a  correct  idea  of  the  sensations  of  the  spectators  of  the  scene  I 
have  just  described,  reflect  that  it  was  the  first  time  that,  in 
a  country  governed  by  the  Constitution  of  the  United  States, 
so  scandalous  an  outrage  to  the  majesty  of  the  laws  was  witnessed. 
Since  then,  unfortunately,  we  have  been  made  familiar  with  as 
flagrant  violations  of  our  franchises  .and  of  our  social  pact; 
violations  which  the  people  have  seemed  to  applaud,  as  if  to 
acknowledge  that  it  felt  too  weak  to  preserve  untainted  and  to 
transmit  to  posterty  the  noble  heriti^e  received  from  the  im- 
mortal founders  of  American  independence! 

This  afflicting  truth  makes  me  fear  that,  had  I  the  masculine 
and  vigorous  indignation  of  Demosthenes,  I  would  succeed  in  ex- 
citing your  indignation  to  the  same  pitch  as  that  of  the  good  citi- 
zens who  were  present  at  this  odious  scene,  and,  as  it  is  to  be 
hoped,  that  every  sincere  friend  of  liberty  would  be  at  the  simple 
recital  of  these  usurpations  of  power,  of  those  insolent  acts  of 
TYRANNY.  As  to  myself,  who,  since  five  years,  have  fled  from 
the  despotism  of  the  greatest  captain  of  modern  times,  I  feared, 
I  trembled  at  the  idea  that  liberty,  my  idol,  was  in  my  adopted 
country  a  word  as  devoid  of  sense  as  in  three  fourths  of  old  Eu- 
rope submissive  to  men  of  divine  right. 

It  was  Edward  Livingstone  whom  the  general  attacked  with  so 
much  rashness  in  the  palace  of  justice;  and  there  that  illustrious 
lawyer  displayed  in  all  its  vigor  as  in  all  its  wealth  his  brilliant 
oratorical  talent.  The  accuser,  satisfied  with  the  blows  he  had 
dealt,  proudly  raised  his  superb  head,  when  Edward  Livingstone, 
whom  he  believed  overthrown,  and  whom  the  Court  was  preparing 
to  cover  with  the  protection  of  the  laws, — rose  in  his  turn,  with 
that  amiable  simplicity  of  manner  so  pleasing  to  all,  and  after 
having  modestly  thanked  the  judges  for  the  share  they  seemed  to 
take  in  the  occurrence,  improvised  one  of  those  discourses  worthy 
of  a  Roman  consul  confounding  Catiline,  striking,  stirring  up, 
electrifying,  subjugating,  transporting,  confounding,  scarcely 
leaving  one  the  faculty  of  perceiving  that  it  is  but  a  man  who 
speaks  and  not  a  God  who  thunders. 


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168  The  Louisiana  Historical  Qtiarterly 

Who  was  then  great?  It  was  surely  not  the  "general  com- 
manding the  military  division ;"  not  the  fine  staff  officers  of  his 
retinue.  The  reign  of  justice  began  anew.  Men  returned  to 
their  places  and  the  terror  by  means  of  which  they  had  sought 
to  make  themselves  greater  and  redoubtable  vanished.  Breathing 
more  freely,  good  citizens  had  the  patriotic  satisfaction  of  seeing 
them  solely  in  the  dimensions  which  nature  and  our  laws  had 
given  them.  You  understand,  I  suppose,  Gentlemen,  that  they 
very  seriously  thought  of  a  prompt  retreat,  without  even  casting 
a  backward  glance,  when,  suddenly,  in  a  firm  voice,  the  Court 
declared  that  before  retiring  the  writ  must  be  enforced  by  pro- 
ducing the  persons  arrested.  The  difficulty  was  great,  but  not 
invincible.  They  extricated  themselves  from  this  false  step  by 
affirming  and  causing  it  \o  be  affirmed  that  the  prisoners  had 
been  embarked  for  the  North,  and  that  the  boats  which  were  to 
carry  them  were  already  out  of  the  river  and  beyond  our  limits. 

God  knows  how  true  these  affirmations  were,  but  the  victims 
of  despotism  were  not  released.  This  great  and  noble  end  was 
not  reached,  but  the  accusations,  the  threats  which  had  provoked 
Edward  Livingstone's  fine  and  thundering  improvisation  were 
effectual,  and,  from  this  moment,  military  arrests  ceased,  the 
law  resumed  its  sway,  and  the  work  on  the  old  fortifications 
which  were  being  restored  at  great  expense  to  resist  an  army  of 
traitors  and  bandits,  who  were  said  to  be  on  their  way  to  invade 
our  Territory,  to  lay  hold  of  the  rich  metals  of  our  banks,  and 
to  make  our  city  the  capital  of  a  new  empire,  was  soon  aban« 
doned,  for,  to  the  astonishment  of  the  good  patriots  who  are  al- 
ways ready  to  applaud  strokes  of  politics  when  the  apprentice 
despots  make  them  in  the  name  of  "Public  Safety,"  the  prodig- 
ious army  which  had  frightened  more  than  one  brave  man  (our 
governor  first  of  all)  never  appeared  anywhere.  (3) 

If,  as  it  cannot  be  denied,  the  orator  of  whom  I  have  just 
spoken  covered  himself  with  real  glory  on  this  occasion,  Hon.  (Jeo. 
Mathews  was  admired  and  justly  esteemed  for  his  impassibility, 
his  firmness  and  his  fidelity  to  the  constitution  and  to  our 
laws.  May  God  will  that  we  should  always  have  such  defenders 
of  our  rights  and  such  judges.     With    them,    the    institutions 


(3)  (The  incident  here  described  occurred  in  December,  1806,  durinflr  the 
uproar  created  in  New  Orleans  by  Oeneral  James  Wilkinson,  concerning  Aaron 
Burr'af  Expedition.  It  Is  he  who  is  here  denounced.  The  governor  is  W.  C.  C. 
Claiborne.  4  Gayarre  170.) 


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George  Mathews — Pres.  of  the  Supreme  Court  of  La,     169 

made  to  protect  individual  liberty  count  for  something  in  times 
of  crisis,  without  them,  they  are  but  smple  theories  which  auda- 
cious ambition  may,  with  impunity,  trample  under  foot. 

Until  now.  Gentlemen,  certain  as  I  am  of  having  brought  to 
your  notice,  of  having  recalled  to  memory,  naught  that  is  not 
strictly  true,  I  cannot  think  that  any  may  deny  that,  in  the 
person  of  George  Mathews,  we  truly  had  ah  excellent  judge.  But 
if  there  was  anything  to  desire  before  irrevocably  expressing  this 
opinion,  I  would  say :  read  the  many  verdicts  he  rendered,  impress 
yourselves  deeply  with  the  difficulties,  which,  in  every  country, 
accompany  the  sublime  task  of  the  upright  man  intrusted  with 
rendering  the  oracles  of  justice,  and  with  good  faith,  without 
prejudice  of  nationality  or  coteries,  consider  how  gvcat  and  mul- 
tiplicate  were  those  incessantly  before  our  tribunals,  by  reason 
of  the  men  they  had  to  judge  as  well  as  the  laws,  to  be  applied. 

You  are  aware.  Gentlemen,  that  a  certain  reason,  a  sane  judg- 
ment, and  a  great  fund  of  probity  are  not  sufficient  to  fulfill 
efficiently  the  duties  of  judge.  To  these  indispensable  gifts  one 
must  unite  the  most  perfect  knowledge,  not  only  of  men  and  the 
laws  in  general,  but  of  those  under  his  jurisdiction  and  of  the 
laws  which  he  is  under  duty  to  interpret  and  to  apply. 

But,  how  must  this  so  necessary  knowledge  be  acquired? 
Man !  who  is  he  who  will  flatter  himself  with  the  belief  that  he 
knows  them  well,  notwithstanding  what  the  Roman  orator  may 
have  said  to  the  contrary;  it  would  be  very  difficult  to  comprise 
what  they  are  in  a  definition  which  would  fit  the  whole  species 
and  each  individual. 

From  the  ordinary  and  peaceful  man  who  follows  the  pre- 
cepts of  virtue  and  honor  he  has  received  from  his  honest  pa- 
rents, without  trying  to  analyse  them,  to  the  turbulent  man  to 
whom  all  social  and  religious  restraint  is  unbearable.  From  the 
enlightened  citizen  whom  study  and  meditation  have  penetrated, 
persuaded  that  wisdom,  probity,  honor,  neighborly  love  and  pa- 
triotic love  are  not  vain  terms  agreed  upon,  who,  as  an  honest 
and  good  citizen,  constantly  recommends  them  as  being  alone 
able  to  lead  men  and  societies  to  happiness;  to  the  enemy  of  social 
order  and  of  the  human  race  who  affects  the  belief  and  en- 
deavors to  persuade  that  there  is  neither  moral  good  nor  evil 
on  earth.  From  the  contemptuous  sycophant  who  does  not 
blush  to  pose  as  the  admirer  and  singer  of  the  most  scandalous 


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excesses  and  vices  of  the  rich  or  powerful  man  at  whose  ex- 
pense he  subsists,  to  the  ambitious  demagogue  who  aims  at  level- 
ling everything  in  order  to  have  no  one  above  him  in  fortune 
or  merit  and  to  make  himself  the  idol  of  the  masses  whom  his 
disorganizing  theories  have  seduced  and  led  astray.  From  the 
simple  man  who  abandons  himself  to  the  chimerical  and  ruinous 
hope  of  metamorphosing  and  quadrupling  the  dollar,  fruit  of  his 
honest  labor  and  of  his  wise  economies,  by  the  sole  effect  of  an 
outbidding  at  a  public  sale,  pompously  announced  by  the  cunning 
speculator  who  with  the  aid  of  a  clever  engineer,  transforms  on 
paper,  uncultivated  fields,  impenetrable  woods,  deep  morasses, 
trembling  prairies  into  smiling  villages,  into  manufacturing 
towns,  into  majestic  cities  which  hundreds  of  thousands  of  men, 
from  God  knows  what  part  of.  the  earth,  will  hasten  to  vivify 
by  their  presence,  to  enrich  by  their  industry.  Of  this,  every- 
where— here  as  elsewhere,  there  are  numberless  varieties. 

If,  one  casts  a  glance  on  the  innumerable  works  of  nian, 
when  they  examine  the  admirable  diversity  of  the  products  of  his 
industry,  the  marvels  of  the  arts  he  has  invented,  the  progress 
he  has  made  and  does  not  cease  making  in  the  sciences,  even  if  he 
is  considered  only  as  the  creator  and  unique  possessor  of  writ- 
ing: 

''that  ingenious  art. 

To  paint  words  and  to  speak  to  the  eyes;" 

(me  can  but  be  inipressed  by  his  immense  superiority  over 
all  the  organized  beings  of  creation.  If  on  seeing  a  man 
traverse  the  bottomless  seas  on  the  fragile  vessels  his  hands  have 
built,  conquering  worlds  which  his  active  genius  has  divined,  that 
his  intrepid  courage  has  discovered,  where  there  were  formerly 
naught  but  deserts  and  vast  solitudes ;  founding,  as  by  enchant- 
ment, colonies,  states  and  empires,  populous,  rich  and  powerful; 
if  on  seeing  him  calculate  the  march  of  the  celestial  bodies,  meas- 
ure the  skies,  **snatching  from  it  its  thunderbolts,"  producing 
the  terrible  crash  and  the  terrible  effects  of  its  thunder,  and,  by 
means  of  a  little  water  which  a  little  fire  converts  into  vapor, 
cross  distances  with  the  rapidity  of  the  eagle,  on  cars  on  which 
are  piled  the  heaviest  loads,  and  thus  make  distance  disappear 
so  as  to  seem  to  have  usurped  the  entirely  divine  prerogative 
of  finding  himself  in  several  places  at  the  same  time ;  if  in  con- 


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George  Mathews — Pres.  of  the  Supreme  Court  of  La.     171 

templating  so  many  prodigies  one  is  justly  proud  of  belonging 
to  the  species  and  tempted  to  believe  himself  the  King  of  the 
earth. 

On  the  other  side,  when  one  considers  the  folly,  the  extrav- 
agance, the  vices,  the  injustice,  the  selfishness,  the  inhumanity, 
the  cruelty  of  the  acts  of  individuals  and  even  of  societies ;  when 
one  thinks  of  the  disorders,  of  the  evils,  of  the  calamities  en- 
gendered by  pride ;  the  baseness,  the  credulity,  the  hypocrisy,  the 
cupidit3%  corruption,  venality  of  many;  the  depravity,  the  arro- 
gance, the  ambition,  the  ardent  thirst  for  power,  the  intrigues  or 
bad  faith,  the  duplicity  of  others ;  truly,  the  high,  the  sublime  idea 
so  pleasurably  formed  of  the  superiority  of  the  species  is  strange- 
ly weakened,  and  it  is  not  without  reason  that  the  sage  passes 
from  admiration  to  disgust  and  to  misanthropy. 

Everywhere,  and  perhaps  more  specially  in  the  countries 
that  have  attained  high  civilization  and  great  prosperity,  men 
are  seen  who  ardently  strive  for  a  twofold  aim,  which  by  more  or 
less  tortuous  roads  they  are  eager  to  reach.  This  aim,  what 
is  it?  Power  and  riches.  To  get  there  they  push  each  other,  they 
press  against  and  jostle  each  other,  they  bruise  each  other  whilst 
proclaiming  very  loudly  the  words  of  patriotism,  disinterested- 
ness, virtue,  probity,  and  whilst  declaiming  against  the  disorders 
of  the  times,  the  rapacity  of  those  in  positions,  the  apathy  of  the 
people  and  all  sorts  of  corruption  emanating,  in  their  opinion, 
from  the  possession  of  treasures  and  the  exercise  of  authority. 

Amongst  us,  gentlemen  and  fellow  members,  who  were  the 
men  whom  the  Hon.  George  Mathews  had  to  judge.  On  his 
arrival,  Louisiana  had  a  white  population  almost  homo- 
genous. The  agents  of  Charles  III  and  of  Charles  IV,  had 
since  many  years  conducted  themselves  wisely  enough  to  allow 
them  to  forget  or  to  forgive  the  acts  of  useless  cruelty  by  which 
O'Reilly,  of  execrable  memory,  to  signalize  the  power  of  his 
master  on  the  banks  of  the  Mississippi,  had  immolated  noble  and 
generous  colonists  to  punish  them,  alas,  for  their  very  natural 
attachment,  to  France  their  mother,  who,  however,  had  aban- 
doned them.  The  Spaniards,  in  a  way  had  intermingled  with 
the  Creoles ;  they  had  adopted  their  customs  and  manners.  The' 
Creoles,  with  the  language  of  their  fathers,  had  preserved  their 
sparkling  wit  and  gaiety,  their  changeable  but  confiding  and 
tender  character,  pliable  and  communicative,  their  kindliness  and 


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172  The  Louisiana  Historical  Quarterly 

their  virtues  of  hospitality.  In  1805  they  still  constituted  but 
one  same  family,  in  which  the  stranger  always  met  with  such 
a  cordial  welcome  that  he  could  hardly  be  persuaded  that  his 
good  fortune  had  not  cast  him  amongst  good  and  tender  brothers 
who  were  happy  to  see  him  again  after  a  long  absence. 

But  soon  this  Louisiana,  so  cruelly  abused  by  men  who  owe 
most  of  their  reputation  for  valor  to  the  patriotism  of  her*  chil- 
dren; this  Louisiana,  so  prompt  to  forget  injury  in  order  to 
recall  only  the  services  rendered,  this  Louisiana,  who  more  than 
once  had  revenged  outrages  by  noble  benefactiojis,  every  year, 
every  month,  every  day,  saw  her  population  increased  by  men 
of  all  nationalities,  of  all  creeds,  of  all  professions,  coming  fi;om 
all  the  civilized  regions  of  the  earth;  some  of  them  abandoning 
the  hearth  of  their  fathers  to  flee  from  persecution  by  their 
political  enemies;  others  proscribed,  exiled  by  revolutions;  some 
to  give  themselves  up  to  an  art  which  received  but  little  encour- 
agement in  their  country;  others  to  share  with  the  old  inhab- 
itants the  chances  of  fortune  which  were  offered  by  a  rich  and 
still  virgin  soil,  and  a  commerce  which  could  but  extend  under 
the  freest  government  of  the  world;  all  of  them  speaking  dif- 
ferent languages,  differing  in  education,  planners,  prejudices 
and  principles,  having  no  common  ties  and  whom  the  pursuit  of 
individual  interests  must  long  keep  ^sunder.  These  were  the 
men  whom  George  Mathews  had  to  judge;  do  you  think  it  was 
possible  for  him  to    know  them  well? 

And  the  laws  instituted  to  diminish  all  excesses,  to  repress 
all  disorders,  to  protect  all  rights,  and  tp  render  justice  to  all, 
what  were  they?  And  what  are  they  now  amongst  us?  It  would 
be  difficult  to  affirm  that  they  are  all  that  enlightened  reason  might 
desire  them  to  be ;  not  that  we  have  ceased  since  thirty-two  years 
to  compile  each  year  a  new  volume  of  them,  but,  from  ever 
amending  in  order  to  perfect;  of  modifying  to  render  more  just; 
of  innovating  to  satisfy  new  needs ;  of  abrogating  to  simplify,  we 
have  succeeded  in  rendering  more  obscure  that  which  was  clear, 
insufficient  that  which  was  complete,  embarrassing  that  which 
was  easy,  unintelligible  that  which  every  one  understood,  and 
'of  impoverishing  us  to  the  point  of  making  it  necessary  to  bor- 
row from  others  what  they  formerly  borrowed  from  us. 

As  early  as  1805  the  Spanish  and  Roman  laws,  written, 
it  is  true,  in  languages  unfamiliar  to  several  public  functionaries, 


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George  Mathews — Pres.  of  the  Supreme  Court  of  La.     173 

as  well  as  to  the  greater  part  of  the  old  and  new  inhabitants,  gave 
umbrage  to  persons  whose  reason,  being  obscured  by  national 
prejudices,  repulsed  the  idea  however  simple  that  laws,  col- 
lected and  put  together  since  numerous  centuries,  might  in  the 
nineteenth  century  be  suitable  to  the  administration  of  civil  jus- 
tice amidst  a  free  people. 

Consequently  several  attempts  were  made  to  do  away  with 
these  laws  and  to  substitute  in  their  stead  a  customary  law,  Anglo- 
Saxon-Norman,  known  under  the  name  of  Common  Law.  No 
doubt  a  very  respectable  law,  but  under  the  control  of  which 
justice  is  so  fettered  in  its  course  that  poor  plaintiffs  are  obliged 
to  have  recourse  to  other  tribunals  than  those  of  la«\r,  that  is  to 
Courts  of  Equity,  which  without  its  being  suspected  and  per- 
haps without  wishing  to  acknowledge  it,  do  nothing  else  but 
follow  and  apply  the  eternal  rules  of  natural  justice  which  they 
take  from  Roman  Law.  The  first  attempt  was  made  when  Hon. 
J.  B.  Prevost  occupied  alone  the  bench  of  our  Superior  Court. 
Edward  Livingstone,  James  Brown,- Louis  Moreau-Lislet,  Pierre 
Derbigny  and  a  fifth  member  of  the  Bar,  (whom  I  must  abstain 
from  naming)  *  united  to  oppose  it. 

The  phalanx  of  their  antagonists,  Scotch,  English,  Irish,  and 
others  presented  itself  as  relying  on  the  organic  law  of  the 
Court  which  carried  with  it  the  jurisdiction  of  common  law. 
It  was  on  this  unique  foundation  that  they  erected  the  for- 
midable work  from  the  height  of  which  the  artillery  of  their 
eloquence  was  to  crush  the  antique  edifice  of  civil  law  in 
this  country.  The  attack  was  brisk,  they  made  the  most  heroic 
efforts  to  insure  victory!  But  Livingstone  spoke,  at  his  voice 
the  menacing  and  thunderng  work  of  the  new  Titans  crumbled 
to  its  base,  and  the  oracle  which  then  emanated  from 
the  mouth  of  Hon.  John  B.  Prevost  swept  away  the  light  rubbish 
and  dispersed  it. 

Dizzy  and  stupefied  by  so  speedy  a  defeat,  these  haughty  as- 
sailants, who  with  regret  saw  an  inexhaustible  mine  of  rich 
prosecutions  lost  to  them,  could  not  comprehend  how  the  work 
their  genius  had  reared  with  as  much  labor  as  art  could  be  so 
swiftly  and  so  completely  demolished.  Let  us  not  be  astonished ; 
they  had  not  understood,  (as  much  by  fault  of  nature  as  from 
their  imperfect  studies),  that  the   sacramental  terms   of  the 


•  (Meaning  himself,  Etlenne  Mazureau.) 


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174  The  Louisiana  Historical  Quarterly 

law  on  which  they  based  their  attack,  might  signify  that  the 
Superior  Court  would  not  exercise  jurisdiction  oyer  the  Courts 
of  Equity,  but  would  in  no  wise  introduce  their  common  law 
of  England  into  the  territory  of  Orleans.  Judge,  Gentlemen, 
of  their  exceeding  blindness ;  the  same  law  on  which  they  founded 
their  right  also  organized  the  legislative  power,  and  contained 
the  precise  provision  "that  all  the  laws  in  force  in  the  country 
would  continue  to  be  there  observed  until  modified,  changed  or 
abrogated  by  the  Legislature." 

The  second  attempt  was  made  after  John  B.  Prevost  had 
tendered  his  resignation,  after  Judge  Sprigg  had  left  us  and 
when  the  Hon.  George  Mathews  occupied  the  bench  alone  by  vir- 
tue of  the  law  then  in  force.  It  would  probably  not  have  been 
repeated  had  the  decision  rendered  at  the  first  attempt  been 
transcribed  in  the  minutes  of  the  Court.  This  surprising  omis- 
sion waB,  I  imagine,  the  sole  cause  of  the  renewed  courage  dis- 
played in  this  second  attack  by  the  enemies  of  our  law,  the  result 
of  which  was  the  same  as  previously,  that  is,  as  void  of  glory  and 
not  more  profitable  to  its  valiant  authors. 

Without  doubt,  you  comprehend.  Gentlemen,  the  imminent 
peril  not  only  to  the  civil  laws  of  the  country  but  also  to  the  for- 
tunes of  the  ancient  inhabitants,  at  one  epoch  as  well  as  the 
other. 

What  would  have  become  of  those  fortunes  if  they  had  suc- 
ceeded in  bringing  on  the  revolution  threatened  by  these  two 
impious  attempts?  What  Louisianian  would  have  dared  to  act 
without  having  at  his  side  a  civilian  versed  in  foreign  laws, 
hastily  reared  on  the  ruins  of  those  of  his  country?  Who  would 
have  known  how  to  trade  validly  with  hi«  neighbor,  how,  with- 
out anxiety,  to  dispose  of  or  accept  by  donation,  or  by  will?  Who 
would  have  known  the  extent  of  power  he  possessed  over  his  wife, 
his  children,  his  slaves?  What  woman  could  have  had  an  idea  of 
her  rights,  or  of  the  nature  and  extent  of  her  duties  as  a  wife 
and  as  a  mother? 

Let  us  admit  that  the  situation  of  this  recent  and  fine  part  of 
the  Union  would  have  been  deplorable  if  Hon.  John  B.  Prevost 
first,  and  after  him,  Hon.  George  Mathews  had  been  short- 
sighted or  had  held  views  as  subversive  to  all  justice  as  the  au- 
dacious aggressors,  who,  relying  more  on  their  strength  than  on 


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George  Mathews — Pres.  of  the  Supreme  Cxmrt  of  La,     175 

the  justice  of  their  cause,  had  the  temerity  to  lay  their  sacrilegious 
hands  on  what,  at  that  time,  was  considered  as  the  holy  ark. 

Let  us  acknowledge  that  the  decisions  of  these  two  conscien- 
tious judges  in  such  critical  circumstances  were  truly  the  salva- 
tion of  the  people  of  Louisiana,  so  hospitable,  so  full  of  confi- 
dence, so  eminently  friendly  to  order,  so  deeply  imbued  with 
respect  for  their  neghbors'  rights. 

In  1808  the  Legislature,  with  a  view  of  satisfying  appar- 
ently reasonable  exigencies,  decreed  the  compilation  of  a  digest 
of  the  civil  laws  of  the  country  in  French  and  in  English.  This 
important  work  was  done.  But  possibly  when  it  appeared  there 
were  many  reasons  to  regret  that  they  had  not  done  as  the  Eng- 
lish in  the  Isle  of  Trinity,  which  when  it  passed  under  the  Britan- 
nic trident  was  in  the  same  conditions  as  Louisiana  when  the 
starry  banner  was  hoisted  on  its  soil.  There,  by  an  order  of  the 
government,  the  Spanish  laws  were  collected  and  translated  into 
English.  Here,  there  was  nothing  to  prevent  their  translation 
into  the  two  languages  we  spoke. 

This  course  which  would  not  have  been  very  expensive,  ac- 
cording to  Hon.  George  Mathews,  would  have  proved  advanta- 
geous by  placing  us  in  such  a  position  as  not  to  think  of  a  re- 
form until  assured  by  study,  meditation  and  experience  of  the 
necessity  of  this  work  in  order  to  conciliate  all  interests  and  all 
needs,  and  to  effect  as  far  as  possible,  and  without  resorting  to 
violent  means,  a  desirable  fusion  of  the  new-comers  and  of  the 
old  residents.  .  This  wise  magistrate  thought  that  if  this  resolu- 
tion had  been  adopted  we  all  might  have  reason  for  congratula- 
tion. 

And  let  not  injustice  be  done  him  by  believing  that  he  thus 
expressed  himself  through  condescension,  or  by  unenlightened 
admiration  for  Roman  or  Spanish  law,  if  what  I  have  already 
said  of  that  legislation  and  of  his  study  of  it  were  not  sufficient 
to  justify  his  thought,  nothing  would  be  easier  than  to  succeed 
therein,  and  persons  prone  to  doubt  would  probably  be  very 
much  surprised  when  told  that  several  of  the  great  principles 
consecrated  by  our  constitutions,  had  likewise  been  consecrated 
by  Roman  and  Spanish  law  a  few  hundred  years  before  the  im- 
mortal Columbus  discovered  our  hemisphere.  Open  the  Roman 
code  of  Alfonso  the  Wise,  you  will  find,  in  energetic  terms,  that 
rule,  sovereign  protector  of  acquired  rights  and  of  human  frailty 


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"that  no  law  may  have  retroactive  effects."  It  will  be  seen  that 
many  centuries  before  they  thought  in  England,  by  the  "writ  of 
habea  corpus"  to  shield  individual  liberty,  the  Romans,  in  a 
Praetorial  Edict,  taken  from  the  Justinian  Digest,  had  their 
writ  of  "de  homine  libero  exhibendo."  What  more  was  neces- 
sary to  recommend  those  laws  to  the  respect  and  admiration  of 
a  man  so  essentially  just,  so  profoundly  sensible  as  Hon.  George 
Mathews. 

This  excellent  citizen,  this  impartial  magistrate,  also  thought 
that  several  provisions  of  the  ancient  Castillian  laws,  particu- 
larly those  relating  to  donations  and  wills,  were  much  more  in 
conformity  with  the  spirit  and  the  aim  of  our  republican  insti- 
tutions than  certain  laws  and  customs,  the  offspring  of  feodality, 
which,  from  England  where  a  powerful  oligarchy  maintains 
them,  have  come  to  be  established  on  American  soil,  with  the 
Puritanism  erstwhile  inimical  to  all  liberty  of  conscience. 
This  opinion  may  perhaps  appear  strange  but  its  correct- 
ness may  easily  be  demonstrated.  That  in  a  wholly  aristo- 
cratic monarchy  or  republic  legislation  should  continually  strive 
to  confer  on  parents  who  have  amassed  riches  a  right  to  favor 
such  or  such  a  child  among  their  children,  to  the  prejudice  of  the 
others,  in  order  to  place  the  preferred  one  in  a  position  to  main- 
tain what  they  call  the  lustre  of  their  name,  or  the  splendor  of 
their  house,  is  a  simple  consenuence  of  the  nature  of  the  govern- 
ment which  continually  aims  at  concentrating  all  that  carries  with 
it  consideration  or  influence,  power  or  strength,  in  those  who  sur- 
round the  depositaries  of  supreme  authority  or  who  share  in  it. 

But,  assuredly,  nothing  is  more  contrary  to  the  spirit  and  aim 
of  our  political  institutions  based  on  the  dogma  of  the  sovereignty 
of  the  people;  nothing  is  to  be  more  dreaded  in  a  republic  like 
ours  where  it  is  to  be  desired  that  all  citizens,  as  far  as  possible, 
may  have  the  means  to  live  honestly  and  independently  of  each 
other. 

Therefore  the  order  of  successions  and  the  rules  for  their 
division,  as  they  were  established  by  the  general  laws  of  Spain, 
were  in  conform'ty  with  the  spirit  and  favorable  to  the  purpose  of 
a  popular  government.  Therefore,  in  restricting  to  one-fifth  of 
his  estate,  the  portion  of  which  a  father  might  freely  dispose 
by  donation  of  will,  these  laws  inevitably  resulted  in  a  continual 


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George  Mathews — Pres.  of  the  Supreme  Court  of  La.     177 

division  and  sub-division  of  large  fortunes  and  also  in  making 
a  more  equal  distribution  of  property  between  citizens. 

It  is  not  possibly  true  that  the  unlimited  right  of  making  a 
will  is  incompatible  with  the  great  principles  of  our  republican 
institutions.  At  most  it  suits  the  selfish  and  impudent  citizen  * 
who  desires  liberty  only  for  himself,  who  is  provoked  at  the  idea 
that  laws  are  made  not  so  much  to  favor  his  unjust  predilec- 
tion than  to  provide  for  the  welfare  of  posterity. 

Let  the  laws  grant  this  monstrous  right,  and,  sooner  than  you 
expect,  the  greater  part  of  those  fortunes  piled  up  by  pride,  will 
go  to  their  grave,  in  the  person  of  heirs  as  rapacious  and  unpro- 
ductive and  insatiable  for  distinction  and  power.  Let  the  laws 
grant  this  anti-liberal  right  and  you  will  run  the  risk  of  having 
at  the  head  of  your  country  in  a  short  while  a  dangerous  aris- 
tocracy, the  most  arrogant  and  the  most  unbearable  of  all,  the 
aristocracy  of  riches.  With  it,  and  crawling  at  its  feet  you  will 
find  kn  ever  increasing  number  of  men  exposed  to  all  the  tempta- 
tions suggested  by  indigence,  of  necessitous  proletariats  always 
willing  to  sell  themselves  to  the  highest  bidder. 

What  will  then  become  of  the  fundamental  dogma:  the 
sovereignty  of  the  people?  Woe  to  the  free  states  whose  im- 
prudent legislation  tends  to  concentrate  fortunes  instead  of  divid- 
ing them.  Power  often  passed  to  the  side  that  holds  the  treasures. 

The  unlimited  faculty  of  disposing  by  will  Is  also  very  preju- 
dicial to  the  prosperity  of  agricultural  countries.  Really  it  is 
only  when  the  land  is  partitioned  off  amongst  a  great  many  active 
and  laborious  proprietors  that  it  yields  to  its  full  power. 

If  republican  Rome  had  had  the  laws  of  Alfonso  the  Wise, 
would  she  ever  have  heard  of  agrarian  laws?  Would  her  Senate 
have  so  often  sent  the  citizens  to  outside  wars  if  this  terrible  ex- 
pedient had  not  been  necessary  to  preserve  the  social  body  from 
the  bloody  commotions  so  frequently  threatened  by  provocations 
caused  by  the  division  of  lands. 

The  fight  of  property  cannot  include  that  of  disposing  of 
one's  fortune  without  restriction.  Established  and  protected  by 
law,  the  wisdom  of  nations  demands  that,  in  its  exercise,  it  be 
confined  within  the  limits  which  general  interest  commands. 
The  father  who  claims  free  exercise  of  this  right  to  its  full  extent, 
without  doubt,  forgets  two  sacred  duties  imposed  on  him,  one  by 
nature  and  the  other  by  society :  the  first  to  cherish  all  his  chil- 


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dren  equally,  the  second  to  alloW  no  act  to  his  to  tend  to  make 
any  of  theih  a  burdien  on  fellow-citizens.    ' 

And  allow  me  to  repeat  after  Hon.  George  Mathews :  It  is  not 
in  a  country,  nor  in  a  centiiry,'  in  which,  thanks'  td  what  we  call 
progress,  illicit  unions  no  longer  seem  to  be  under  reprobation, 
that  the  unlimited  right  to  will  at  pleasure  may  be  authorized  by 
law,  unless  we  are  disposed  with  anti-social  indifference  to  isee 
the  children  born  of  legitimate  marriages  despoiled  to  enrich  the 
others,  and  family  fori;uneS  pass  fl^om  white  heirs  to  those  who 
may  find  their  ancestori^  between  cape  Verd  and  the  cape  of  Good 
Hope,  and  the  Tartuf es,  apostles  of  negtophilism,  by  thiia  powerful 
means;  level  the  freehand  this  freed  classes,  and  then  se«ll  With  the 
blood  of  both,  confounded  in  an  iminerise  hecatomb;  the  infernal 
act  of  iafcolition,  for  which  they  are  working  in  the  name  of  Heaveh 
and  whidh  is  j)€ithaps  dictated  by  the  hypocriticiBll  philanthrbfy 
of  the  foreigner  ids  jtealbus  as' he  is  anxious  of  bui*  prosperity. 

On  the  otlier  part,  doeis  not  the  farther  who  regrets  that  hefe 
he  has  rioi  fiill  liberty  in  disposing  of  his  fortune  by  will  deceive 
himself  in  the  thoug^it  that  tliis  would  bie  a  guarantee  of  the 
affection  aiid  respect  of  his  children?  l)bes  it  mean  that  k  young 
Englishman  distinguishes  himself  more  than  a  young  Castilfari 
in  filial  pietjr.  Let  us  pity  the  father  wh6  coiitd  believe  that  hie 
could  obtain  love  and  obedience  from  his  isbn  onlir  by  th^  fear'he 
coiild  inspire  of  disinheriting  him.  It  cannot  be  true  that  the 
eloquent  voice  of  nature  no  longer  vibrates  in  the  hearts  of  those 
who  owe  us  tiieir  life,  who  have  always  been  the  object  of  biir 
most  tender  sollicitude :  it  is  not  possible  that  a  pfaltry  pecuniary 
interest  has  niore  influence  over  them.  Ah!  for  our  own  honor, 
let  us  silence  reasoning^  lio  doubt,  led  a'sttay  by  the  prejudices 
of  another  age  with  the  sole  aim  of  gain,  iii'  these  important  and 
delicate  matters,  let  us  not  falsely  cry  out  that  the  law  on  the 
banks  of  the  Mississippi  be  the  same  as  that  on  the  banks  of  the 
Thames,  that  filial  piety  may  not  reside  in  our  homes  Unless 
held  by  interest:  one  might  believe  that  paternal  tenderness 
never  existed  there. 

Besides,  Spanish  law,  in  fixing  the  disposable  share,  in 
several  cases  allowed  a  father  to  disinherit  his  son.  For  in- 
stance if  the  son  dared  to  strike  his  father,  to  speak  offensive 
words  to  him,  to  accuse  him  of  crime,  to  deprive  him  of  liberty, 
to  defame  his  character; — in  each  of  these  cases  and  in  several 


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George  Mathews-^Pres.  of  the  Supreme  Court  of  La.     179 

others,  the  father  had  the  incontestable  right  of  punishing  him 
by  disinheriting  him.  , 

You  may  then  see^  Gentlemen,  that  the  Legislature  had 
wisely  conciliated  the  obligations  of  the  fathex  to  his  children 
with  the  duties  of  the  children  to  their  father.  It  had  done 
more.  It  had  instituted  paternal  power,  a  kind  of  supreme  mag- 
istrature,  which  was  the    surest  safeguard  of  family  virtue. 

This  power  was  quite  extensive,  it  is  true,  but  the  father 
could  not  abuse  it.  A  son  could  be  emancipated  and.  pass  from 
too  heavy  a  yoke  to  the  protective  authority  of  a  wiser  and  more 
humane  tutor.  I  feel,  perhaps  too  late,  that  I  have  extended  this 
digression  beyond  the  limit,  and  the  only  excuse  to  find  is  the 
inconsiderate  reproach  made  by  certain  jurisconsults  of  too 
much  attachment  to  the  ancient  laws  of  the  country. 

«  Allow  me,  however,  to  make  some  comparisons  between 
them  and  our  new  laws,  which  do  not  seem  to  be  in  favor  of  the 
latter. 

Under  the  swiay  of  the  Spanish  laws  as  under  the  rule  of  our 
Codes,' an  appeal  was  granted  from  the  inferior  to  the  superior 
judge.  The  appeal  wa^  suspensive  when  it  was  made  within 
a  given  delay.  It  Wafe  only  devolutive  when  it  was  made  after 
that  delay.  Suspensive  it  left  matters  in  statu  quo  until  judg- 
ment by  the  supreme  tribunal.  Devolutive  it  did  not  arrest  exe- 
cution of  the  judgment. '  This  execution  took  place,  but  with  ob- 
ligation for  the  triumphant  plaintiff  to  furnish  a  reliable  bond 
to  re-establish  things  in  the  same  condition  if  on  appeal  the  judg- 
ment was  reversed. 

Thus,  when  the  property  of  a  defendant  unjustly  condemned 
in  the  first  instance  had  been  seized  and  sold  in  execution  of  the 
judgment  from  which  only  a  devolutive  appeal  had  been  made, 
if  in  last  resort,  the  plaintiff  won  his  case  he  was  again  put  in 
possession  of  the  property  and  placed  in  the  same  situation  as 
previously. 

Nowadays,  Gentlemen,  as  you  know,  it  is  no  longer  so.  The 
new  law  demands  that  even  when  an  appeal  is  'made  in  the  given 
time  for  the  suspension  of  judgment  in  the  first  instance  and 
that  the  party  appealing  furnishes  bond  to  proceed  and  to 
pay  the  amount  of  the  condemnation  and  the  costs  if  the  judg- 
ment be  confirmed  by  the  superior  tribunal.  If  he  does  not 
furnish  the  bond,  or  if  he  allows  the  given  time  to  elapse  his 


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adversary  may  have  his  property  seized  and  sold  and  exact  pay- 
ment and  freely  dispose  of  all  that  he  has  thereby  received. 
Nothing  could  possibly  restrain  this  adversary  or  prevent  his 
acting  with  such  dangerous  promptitude.  He  will  probably 
hasten  to  take  advantage  of  this  circumstance  so  favorable  to  his 
interests,  if  he  is  not  of  good  faith,  or  if  he  has  not  absolnte 
confidence  in  the  merits  of  his  case;  and  why  so?  Because  the 
new  law  does  not  say  as  the  ancient  one:  "You  may  have  the 
judgment  you  obtained  executed  since  your  antagonist  has  not 
satisfied  my  exactions  in  order  to  render  his  appeal  suspensive, 
but  you  yourself  will  previously  furnish  good  and  sufficient  se- 
curity that  you  will  reinstate  him  in  peaceful  possession  of  the 
property  which  you  wish  to  have  seized  and  sold  and  re-establish 
him  in  the  same  conditions  as  before  your  suit,  if  the  supreme 
tribunal  reverses  the  judgment  of  the  inferior  court."  Thus,  under 
our  present  legislation  it  is  in  vain  that  a  defendant,  who  has  been 
able  to  take  only  a  devolutive  appeal,  obtains,  in  the  end,  a  strik- 
ing justice  against  the  unjust  man  who  prosecuted  him,  in  vain  is 
the  wrong  done  him  by  the  ignorance  and  incapacity  of  the  judge 
of  the  first  instance  repaired  by  the  wisdom  of  the  judge  of  the 
last  resort.  If,  after  having  felt  the  consequences  of  the  unjust 
but  legal  expropriation  which  followed  the  erroneous  judgment 
the  plaintiff  has  squandered  the  proceeds  or  absconded  and  left  no 
property,  the  property  of  the  unfortunate  defendant  condemned 
by  an  ignorant  and  imbecile  judge  is  utterly  lost  to  him.  Despoiled, 
reduced  to  penury,  he  and  his  children  have  no  resource  but  tears 
and  no  consolation  but  the  sterile  sentence  of  the  Court  of  Ap- 
peals. 

Does  not  this  desolating  contrast  impress  you?  Which  of 
the  two  laws  is  the  good  one?  Certainly  the  most  insolent  par- 
tiality will  not  dare  to  say  that  it  is  the  new  one!  However,  it 
is  the  work  of  what  we  call  our  wisdom ;  it  is  the  product  of  a 
century  resplendant  in  prodigies,  whilst  the  Spanish  law  equally 
protecting  the  rights  of  an  appellant  and  those  of  the  defendants 
was  the  work  of  a  single  man  called  king  or  tyrant,  the  product 
of  a  century  of  barbarity. 

Let  us  not  imagine  that  this  iniquitous  new  law  cannot  bear 
its  bitter  fruits.  It  has  already  done  so,  and  honest  fathers  of 
families  have  been  completely  ruined.  How  greatly  Hon.  George 
Mathews  deplored  the  cruel  necessity  in  which  this  disastrous 


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George  Mathews — Pres.  of  the  Supreme  Court  of  La.     181 

law  has  placed  our  supreme  court,  that  of  sanctioning  so  fra- 
grant a  spoliation.  Ah !  we  may  fear  that  it  will  often  claim  new 
victims.     We  cannot  too  speedily  tear  it  out  of  our  Codes. 

Would  to  God  it  were,  Gentlemen,  that  this  incomprehensi- 
ble thirst  for  innovations,  which  has  not  yet  ceased  to  torment 
us;  that  the  dangerous  mania  of  substituting  the  trials  of  our 
short-sighted  views  to  the  lessons  of  long  experience  had  been 
disastrous  to  just  rights  only  in  the  cases  I  have  alluded  to!  But 
this  is  not  the  place  nor  the  occasion^  to  extend  at  length  on 
this  inexhaustible  subject. 

Besides,  I  believe  that  I  have  sufficiently  justified  the  opin- 
ion emitted  by  Hon.  George  Mathews,  that  if  instead  of  busying 
ourselves  so  much  in  making  codes  we  had  translated  and  studied 
the  laws  we  did  not  understand  from  not  knowing  how  to  read 
them,  we  would  have  had  occasion  for  congratulation  instead. 
Let  us  not  dissimulate  it,  we  must  have  master  minds,  jurists  of 
vast  erudition  and  of  rare  sagacity,  highly  enlightened,  foresee- 
ing and  very  wise  legislators  to  make  better  digests  than  that 
of  Justinian  and  better  laws  than  those  of  Alfonso  the  Wise. 

Why  have  we  not  had  the  prudence  and  the  circumspection  of 
the  legislators  of  the  other  states  of  the  Union?  They  are  not 
given  to  meddling  with  the  system  of  their  civil  laws ;  therefore 
their  jurisprudence  is  ever  illuminated  by  the  experience  of  cen- 
turies  as  a  luminary. 

Our  Code  of  1808,  whose  co-existence  with  the  ancient  laws 
that  were  not  incompatible  was  wisely  maintained,  remained  in 
vigor  during  almost  eighteen  years.  If,  as  it  must  be  acknowl- 
edged, imperfections  were  noticeable  in  it,  jurisprudence  aidea 
by  the  enlightenment  found  in  the  Roman  and  Spanish  laws  had 
ended  by  embodying  itself  into  a  corps  of  legal  doctrines  which, 
if  not  perfect,  (what  work  of  the  human  mind  can  be  so),  was 
at  least  sufficiently  complete,  sufficiently  comprehensible  to  all 
slightly  studious  minds,  to  satisfy  in  great  part  the  exigencies  of 
reason  and  justice. 

If,  at  the  outset,  our  judges  felt  their  way,  (which  was  In- 
evitable) one  may  truly  say  that  in  1825  their  tread  was  firmer 
and  that  a  multiplicity  of  rules  of  daily  application,  totally 
omitted  from  our  digest,  or  set  there  in  too  vague  or  too  abstract 
a  manner,  had  acquired  a  desirable  clearness  and  stability,  and 
had  become  familiar  to  the  least  instructed  practitioners. 


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182  The  Louisiana  Historicocl  Qtuirterly 

But,  as  if  it  were  in  the  destiny  of  our  country  that  we 
should  move  from  trial  to  trial,  risking  to  plunge  into  confusion 
and  of  upsetting  everything,  clamors  arose  against  this  same 
digest,  against  its  insufficiency,  and  above  all,  against  the  neces- 
sity under  which  we  still  labored  of  going  to  sources  from  which 
were  taken  the  principles  which  rule  our  civil  tribunals.  They 
wanted  a  code  comprehensible  to  all ;  as  if  the  science  of  laws, 
as  well  as  any  other  science,  was  not  always  and  everywhere 
the  exclusive  portion  of  studious  persons  who  make  it  their  sole 
occupation.  They  wanted  a  code  covering  everything,  foresee- 
ing everything,  providing  for  everything,  as  if  such  a  code  could 
ever  emanate  from  man!  A  new  code  was  made.  Less  incom- 
plete and  in  this  respect  less  imperfect  than  the  f ir3t.  However, 
it  was  so  far  from  fulfilling  the  exigencies  of  justice  that  our 
tribunals  were  continually  obliged  to  dig  into  the  old  compila- 
tions of  Castilian  and  Latin  laws  to  find  rules  that  might  be  ap- 
plied to  cases  to  which  the  general  rules  in  that  voluminous  col- 
lection could  with  difficulty  be  applied. 

At  last,  in  1828,  notwithstanding  the  experience  of  three 
more  years  of  groping,  notwithstanding  the  omissions  intention- 
ally made  in  the  last  Code  through  the  wisdom  of  it»  compilers, 
who  refused  to  include  in  it  what  belonged  to  a  commercial  code, 
a  spirit  of  discontent  was  again  manifested,  hostilities  were  re- 
newed against  the  ancient  laws  of  the  country,  and  French,  Ro- 
man and  Spanish  laws  were  all  abolished. 

Gentlemen,  what  ivas  the  result  of  this  decisive  measure? 
Was  it  not,  first  of  allv  depriving  us  of  the  help  of  the  enlighten- 
ment of  all  previous  centuries,  but  moreover,  depriving  us  of 
laws  which  were  in  constant  demand.  We  had  our  own  commercial 
laws,  we  now  have  none.  We  had  a  perfectly  co-ordinated  sys- 
tem of  legal  procedure  in  ^executory  and  hypothecaiy  matters,  in 
that  respect  we  have  but  a  few  rough  draught  titles  in  our  prac- 
tice code.  We  may  say  the  sam^  61  all  that  refers  to  the  various 
meetings  of  creditors,  to  compositions,  to  voluntary  and  com- 
pulsory cessions.  Thus  when  a  question  of  commercial  law  pre- 
sents itself  our  tribunals  are  obliged  to  have,  recourse- to  the 
rules  and  principles  adopted  and  consecrated  out  of  this  country 
by  foreign  legislators  or  judges,  and  in  all  executoiy  or  security 
matters,  in  the  voluntary  or  compulsory  cessions  of  property,  or 
the  compositions  or  delays,  they  are  compelled  to  supply  what 


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George  Mathevfs^-Pres.  0/  tfie  Supreme  Court  of  La.     183 

is  lacking  in  legislft|;ive  provisions,  and  instead  of  confining 
Jthemselv^s  to  their  prerogatives  as  judges,  interpreters*  of  the 
law,  in  a  way,  they  have  to  es^blish  themselves  as  legislators 
and  enact  new  rules  which  they  ^re  obliged  to  follow;  and  this, 
in  direct  opposition  tp  the.  wise  principles  which  constitute  the 
fundamental  base  of  our.  social  organization,  in  violation  pf  our 
constitutions  which  forbid  confiding  our  legislative  and  judiciary 
power  to  the  same  persons. 

Such,  Gentleman,  were  the  disastrous  effects  of  the  act  of 
1828  which  struck  at  our  new  codes  with  the  purpose  of  amend- 
ing or  ameliorating  them.  Such  was  the  result  of  the  famous 
Section  25  of  this  act,  which,  when  he  knew  of  it,  Hon.  George 
Mathews  called:  "The  great  sweeping  clause"  (le  gran  coup  de 
balai).  If  it  is  progress  to  impoverish  one's  self;  if  it  is  prog- 
ress to  roughly  eartinguish  the  lights  which  ^d  us  to  walk  with- 
out stumbling  through  the  ,obscure  labyrinth  to  which  lead  the 
opposite  pretentions  of  pleaders  who  are  led  astray  or  who  are 
of  bad  faith;  it  was  certainly  a  yery  remarkable. one  th^y  made  us 
make  in  1828 !  But  let  u^i  not  be  vain  enough  to  b^heve  that  it 
was  the  ,only  one  of  its  kind  4n  history. 

In  the  middle  of  the  seventh  century,  a  certain  king,  by  name 
Chindasvendo,  had  a  code  mrade  by  some  scientists  of  his  country. 
He  adopted  it  and  decorated  it  with  the  title  of  "Fuero  Juzgo"; 
this  code  contained  six  hundred  passably  obscure  articles  or  pro- 
visions, which  they  persuaded  him  covered  all  that  should  be 
provided  by  the  legislation  of  an  already  ancient  nation  given  to 
commerce,  agriculture  and  war.  In  consequence  he  ordered  that 
this  masterpiece  of  wisdom  be  the  sole  guide  followed  by  his 
loyal  subjects  in  all  the  Spanish  provinces  under  his  paternal 
domination,  and,  in  order  to  assure  it  more  fully  with,  one  stroke 
of  the  p^n  he  abrogated  the  whole  Roman  law.  As  another 
Omar,  this  Visigoth  thus  acquired  the  signal  honor  of  having  de- 
stroyed, not  by  fire,  but  by  a  single  act  of  his  royal  will,  of  having 
banished  from  all  the  tribunals  of  his  empire;  a  whole  legislation, 
the  fruit  of  the  meditations  and  wisdom  of  ten  centuries,  which 
eyen  in  pur,  century  of  prodigies,  the  most  enlightened  philoso- 
phers and,  Jurisconsults  have  decorated  with  the  sublime  name 
of  written  reason.  This  written  reason  which  blind  passion  may 
at  times,  take  a  aavag^y  pleasure  in  overthrowing  from  its  throne, 
which,  after  having  outlived  Rome,  its  mother-country,  had  re- 


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184  •       The  Louisiana  Historical  Quarterly 

sumed  its  sway  amidst  the  barbarians  who  had  destroyed  the 
'*king'^  nation,"  is  immortal  as  the  principles  of  natural  justice 
whose  oracle  it  is,  it  is  the  torch  of  human  justice  and  will  be  so 
when  names  more  famous  than  that  of  Chindasvendo,  (whom  I 
have  just  exhumed),  will  have  fallen  into  oblivion.  Assuredly, 
it  proved  to  all  a  sad  subject  of  congratulation,  let  us  acknowl- 
edge it  with  Hon.  George  Mathews  in  the  nineteenth  century, 
without  suspecting  it,  to  have  followed  the  example  of  an  ignor^ 
ant,  presumptuous  despot  who  reigned  twelve  hundred  years  ago. 
Let  us  hope  that,  aware  of  the  harm  of  this  act  of  vandalism, 
we  will  soon  find  a  way  of  repairing  the  harm  we  have  inflicted 
on  ourselves.  After  having  traveled  in  a  large  circle  of  errors, 
real  progress  and  the  only  possible  one  for  civilized  man  is  to 
return  promptly  to  the  eternal  laws  of  reason  and  justice. 

If,  before  1828,  all  our  judges  and  leigrislators  required 
varied  and  extensive  knowledge,  many  studies  or  researches  to 
derive  advantage  from  the  treasures  of  knowledge  and  wisdom 
which  centuries  of  experience  had  transmitted  to  us,  can  we,  at 
this  time,  flatter  ourselves  with  the  assurance  that  they  are,  or 
may  become  in  the  future,  rich  enough  from  their  own  resources 
to  supply  all  that  is  wanting  in  our  modern  codes?  Equity,  they 
will  say,  equity  is  the  source  from  which  they  will  draw.  Ah! 
Let  us  fear  that  it  be  with  equity  as  with  common  sense  of  which 
every  one  speaks,  which  each  one  believes  he  possesses,  and  which 
is,  in  reality,  the  possession  of  but  a  small  number  of  beings 
gifted  by  nature  sUch  as  was  our  worthy  judge.  Into  what 
frightful  chaos  have  we  been  thrown !  What  wide  portals  have 
we  not  opened  to  the  despotism  of  the  tribunals. 

The  Roman  digest  alone,  transcribed  in  part  in  the  code  of 
Alfonso  the  Wise,  contained  over  one  hundred  and  forty  thou- 
sand divers  laws  and  decisions  of  which  fifty  thousand  perhaps 
referred  to  matters  succintly  treated  in  the  3,522  articles  of  our 
new  code.  The  matter  referring  to  legacies  alone  takes  up 
eleven  hundred  texts  of  the  Justinian  Digest ;  our  code  holds  but 
thirty-one  rules  on  this  immense  subject.  Consequently,  would 
there  not  be  a  certain  amount  of  folly  in  persuading  ourselves 
that  this  code,  aside  from  some  deserved  praise,  can  cover  every- 
thing? Experience  has  often  taught  us  that,  even  if  we  were 
rich  in  the  fruits  of  the  wisdom  of  over  twenty  centuries,  we  did 
not  yet  have  all  that  was  desirable  to  have  in  order  to  resolve 


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George  Mathews — Pres.  of  the  Supreme  Court  of  La.     185 

many  questions  which  seemed  new,  and  which  probably  had  been 
rarely  presented  for  examination  before  the  jurisconsults  of  an- 
tiquity. To  what  were  those  new  questions  due?  They  were 
probably  due  to  the  very  perfectibility  bf  our  species;  but  they 
were  specially  due  to  the  astoiiishing  development  of  manufac- 
tures, agriculture  and  all  human  enterprises  since  the  discovery 
of  the  new  world ;  the  passage  to  the  East  Indies  by  the  Cape  of 
Tempests  and  the  glorious  revolution  of  the  American  Colonies, 
which  was  the  signal  for  emancipation  of  the  genius  of  commerce 
all  over  the  earth.  These  new  questions  were  due  to  the  per- 
fection and  mixture  of  our  languages ;  to  the  variety,  the  compli- 
cation, the  infinite  multiplicity  of  our  new  relations  from  nation 
to  nation,  from  man  to  man ;  to  the  modifications  which,  from  all 
these  causes,  must  necessarily  subsist  in  our  contracts,  our  ar- 
rangements, our  treaties,  or  engagements,  our  obligations,  as  a 
result  of  our  prudence  or  of  our  levity,  of  our  confidence  or  of 
our  fears,  of  our  hopes  or  of  our  anxieties,  of  our  sincerity  or  of 
our  lack  of  good  faith. 

Therefore,  Gentlemen,  when  we  wish  to  consider  seriously 
the  task  which  our  judges  had  to  fulfill  and  the  difficulties  which 
they  met  at  every  step  as  the  natural  result  of  the  iiistability  of 
our  laws,  and  of  the  new  studies  which  incessant  changes  neces- 
sitated, who  among  us  will  find  it  surprising  that  they  often  com- 
mitted grievous  errors?  Who  could  conscienciously  complain  if 
such  had  been  the  usual  result  of  their  decisions.  The  more  I 
reflect  on  this  the  more  pleased  I  am  to  think  that  if  until  now 
we  have  had  judgments  (as  I  like  to  say  it)  which  may  generally 
fitand  the  most  severe  criticism,  it  is  that  our  judges  were  en- 
dowed with  a  knowledge  superior  to  that  of  our  statesmen. 

Under  the  conditions  from  1808  until  now,  what  prudence, 
what  indefatigable  zeal,  what  sagacity,  what  rectitude  were  re- 
quired by  our  judges,  and  particularly  by  those  of  our  courts  or 
appeal,  to  fulfill  their  duties  worthily?  Imposing  duties  every- 
where, but  certainly  more  difficult  in  a  country  where  civil  legis- 
lation had  no  fixity,  and  in  the  midst  of  such  a  population  as 
ours.  This  population  (let  us  Hot  forget  it)  composed,  and  to  be 
composed,  for  a  long  time  undoubtedly  of  men  of  different  origin, 
language,  education,  manners  and  prejudices.  It  changes  and 
renews  itself  in  some  sort,  from  year  to  year ;  and  is  constantly 
agitated  in  every  sense  to  exploit  the  resources  presented  to  all 


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186        ,  The  Louisiana  Historical  Qtuirt^rly^ 

industries  a^n^  to  al,l  ambitions  by  a  country  still  Xi^W,  ap.d  abpye 
all,  by  this,  great  mart  of  all  the  rich  products  of  the,  va^t  ^western 
regions  of  our; fine  and  powerful  republic.        .1 

,  But  prudence!  Education  and  experience  paay  give  it,  if, 
besides  these,  one  has  been  gifted  by  nature  with  an  observing 
and  just  mind,  ' 

.Zeal !  It  would  be  difficult  to  deny  that  it  depends,  mpre  or 
less,  on  this  love  of  justice  .which  springs. only  from  a  virtuous 
heart.  .      .         :  • 

Sanctity!  ,  Rectitude  of  judgment!,  Ah!  ,  Frora^  Heaven 
only  come  gift3  so  precious,  so  rare,  so  indi^ensable  tQ  the  or- 
gans and  interpretors  of  the  law,  that  they. may. no,t  frequently 
immolate  innocence  a^d  equity  in  the  august  temple  of  justice, 
too  of  ten  prpf  aned  by  bad  f  ^ith. 

.  What  a  loss  does  a  country  like  ours  incur  when  sounds  the 
last  hour  of  a  judge  who  possessed  to  such  a  high  degree  the 
most  invaluable  qualities,  and. who,  during  thirty  years  of  duty 
never  gave  occasion  for  complaint  or  for  a. reasonable  reproach! 
This  loss  is  a  great  and  deplorable  public  calamity,  the  pi^mory 
of  .which,  pride  ^nd  presumption  alone  would  boa3t.of  effacing  in 
a  shoft  while.     <  .  j 

In  old  Europe,  even  in  our  time,  notwithstanding  the  efforts 
of  philosophy,  subject  to  laws  which  emanate  from  and  depend 
only  on  the  will  of  a  man  seated  on  a  throne,  and  decorated  with 
the  pompous  title  of  duke,  king  or  emperor,  by  the  i  grace  of  God, 
it  is  always  the  prince  who  is  blessed,  and  to  whom  all  thanks  are 
rendered  when. they  enjoy  the  advantage  of  having  &  just  and 
honest  judge  seated  in  a  tribunal,  and  one  who  is  penetrated  with 
the  hqhness  of  his  duties,  and  ever  disposed  to  render  unto  each 
what  bplongs  to  him.  There,  wh^re  ^n. education  entirely  in 
favor  of  th^  dominators  and  a  long  habit  of  submission ,  do  not 
give  men  the  facility  of  believing  that,  in  givipg  them  existence, 
nature  h^s  endo^^ed  them  with  some  rights;  th^r^,  w;here,.to  re- 
flect, and  to  reason  is.^a  crime,  and  to  obey  blindly  is  the  first  of 
virtiips,  ,it  i§,  in  some  sort,  natural  to  thank. a  m^ste^.  f or . not 
having  pleased  tp  give,  instead  of  a  tru^  jijdge,  one  of  those 
odious, ,  subaltern  tyrants,,  who  believe  tjiey.  cannot  serve  him 
better,  and  better  deseirve  his, sovereign  good,  wiy,  than  in  op- 
pre?sinj^,  his  subjects. ,  And .  )»rh)^n,  .inexorabjip.  de^th  s^iatchea  a 
yirtupus  judg^  .frpm.tji^e  .lo;^  of  ,th.Q9es.to.  3yhpm  he,admi];ustew 


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George  Mathews— Pres.  of  the  Supreme  Court  of  La.     187 

justice,  it  is  plain  that  all  carry  their  prayers  and  wishes  to  the 
foot  of  the  throne,  and  implore  what  they  call  the  clemency  of  his 
goodness,  to  replace  the  worthy  magistrate,  who  is  no  more,  by  a 
successor  as  just,  as  enlightened,  as  worthy  of  the  confidence 
of  the  weak  and  innocent. 

Amongst  us.  Gentlemen,  where  the  holiest  and  the  most  glor- 
ious of  revolutions  has  made  of  poor  provinces,  of  feeble  colonies 
oppressed  by  a  metropolis  as  unjust  as  it  is  rich  and.  powerful, 
free,  sovereign  and  independent  states,  which  being  united  by  a 
constitution  which  is  the  masterpiece  of  humi^n  wisdom,  have 
taken  a  high  rank  among  the  most  civilized  and  the  most  flour- 
ishing nations  of  the  earth.  Amidst  us,  owing  to  enlightened 
philosophy  and  to  the  pure  and  ardent  patriotism  of  the  immor- 
tal  founders  of  the  grandest  and  most  powerful  republic  of  an- 
cient or  modern  times,  the  man  of  our  race  rises  to  the  height  of 
the  natural  dignity  of  his  being,  and,  as  a  citizen,  knov7s  no  other 
master  but  God  and  the  law!  Who  shall  we  bless  when  the  locales 
of  justice  will  have  been  intrusted  to  stainless  hands  who  held 
them  so  long  without  ever  knowingly  letting  them  lean  towards 
despotism  or  iniquity?  To  whom  shall  we  express  our  wishes 
that  the  judge  who  has  <:eased  to  live  be  replaced  by  a  judge,  who 
as  well  as  he,  will  deserve  our  esteem,  our  confidence  and  our 
respect? 

Ah !  If  all  passions  excepting  the  sacred  love  of  public  safe- 
ty were  foreign  to  the  hearts  of  the  high  functionaries  to  whom 
our  fundamental  pact  has  intrusted  that  forniidable  as  well  as 
seducing  power  of  nominating  to  positions;  if  these  positions 
might  never  be  given  but  to  those  who,  by  their  enlightenment, 
their  zeal,  their  virtues  and  their  talents  are  most  worthy  to  be 
called  to  them.  Gentlemen,  we  could  be  free  from  alarm  for  the 
future.  But  pardon!  I  feel  th^tthe  word  I  was  about  to  say, 
might  be  considered  as  a  censi)r;6^  y^ich  is  far,  very  far  from  my 
thoughts. 

If  the  depositaries  of  authority  were  not  so  frequently  tor- 
mented, circumvented,  the  deceit  of  their  solicitors  playing  on 
their  human  f raility  to  the  point  of  depriving  them  of  the  faculty 
of  seeing  that,  far  from  following  the  inspiration  of  reason,  they 
are  most  frequently  under  a  foreign  and  interested  influence. 
If,  when  we,  ourselves,  solicit  for  our  friends,  or  when  we  exer- 
cise our  precious  right  of  suffrage,  we  were  truly  worthy  of  the 


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188  The  Louisiana  Historical  Quarterly 

noble  title  of  citizen,  with  which  we  love  to  decorate  ourselves, 
we  would  consult  natight  but  public  interest,  we  would  then  per- 
haps have  the  right  to  be  severe>  even  inexorable  when  we  see 
the  proxies  of  the  people  regardless  of  what  public  good  de- 
mands. But  alas ! ! ! 

Oh!  Let  us  abstain  from  all  comments  that  Christian  char- 
ity may  forbid,  and  offer  our  most  fervent  prayers  to  the  Eter- 
nal author  of  all  good,  that  it  may  please  him  to  imbue  us  more 
and  more  every  day  with  the  necessity  of  shedding  all  personal 
predilections  for  the  public  interest,  and  to  rekindle  in  the 
depths  of  our  hearts  the  love  of  our  country  without  which  there 
is  neither  citizen  nor  republic.  Let  us  thank  him  for  having  so 
happily  inspired,  first,  the  illustrious  Thomas  Jefferson  when 
George  Mathews  was  commissioned  Judge  of  the  Superior  Court 
of  the  Territory  of  Orleans,  and  then  the  Governor  and  the  Sen- 
ate of  the  State,  of  Louisiana  when  they  called  this  honest  judge 
to  the  bench  of  our  Supreme  Court.  Let  us  ask  this  same  all 
powerful  God  to  give  us  another  proof  of  his  protection  in  In- 
spiring our  present  virtuous  Governor  and  our  honorable  Senate 
to  make  such  a  choice  as  will  not  only  justify  the  confidence  of 
the  people,  but  which  will  also  prevent  our  feeling  more  deeply 
each  day  the  loss  we  have  sustained. 


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DISCOURSE  ON  THE  LIFE  AND  CHARACTER  OF  THE 
HON.  GEORGE  MATHEWS. 


By  the  Hon.  Chaa.  Watts, 
At  the  Request  of  the  Members  of  the  Bar  of  New  Orleans. 


Brethem  of  the  Bar,  and  Fellow  Citizens  of  Louisiana : 

Upon  the  decease  of  any  person  of  note,  it  was  a  custom 
among  the  ancient  Egjrptians  to  institute  an  investigation  into 
the  life  and  character  of  the  deceased,  and  to  pass  a  sentence  ot 
censure  or  approbation,  according  as  he  merited  it,  in  relation  to 
his  public  and  private  life. 

It  may  be  considered  as  an  emanation  of  this  popular  feel- 
ing, that  at  the  present  day,  on  the  decease  of  any  man  who  has 
deserved  well  of  his  fellow-citizens,  they  call  for  a  review  of  his 
life  and  character. 

As  funeral  rites  to  the  body  assuage  the  grief,  and  gratify 
the  affections  of  the  relations  and  friends  of  a  private  person,  so 
the  public  expression  of  the  sentiments  of  respect,  and  venera- 
tion for  the  character  of  a  man  whose  departure  from  life  is  felt 
as  a  public  loss,  and  an  analysis  of  the  traits  and  qualities  which 
called  forth  public  esteem,  is  a  discharge  of  some  portion  of  the 
debt  of  public  gratitude,  and  is  an  incentive  to  the  honorable  am- 
bition of  those  whose  minds  are  so  constituted  as  to  find  more 
happiness  and  satisfaction  in  serving  their  fellow-citizens,  than  in 
the  attainment  of  the  objects  of  a  private  and  personal  nature. 

To  this  source,  I  trace  the  resolution  adopted  at  a  meeting  of 
the  brethern  in  the  profession  of  the  late  Judge  Mathews,  in  pur- 
suance whereof  we  are  now  assembled,  and  in  compliance  with 
which,  I  shall  proceed  to  lay  before  you  such  reflections  on 
his  life  and  character  as  suggest  themselves  to  me.  A  deep 
participation  in  the  general  sentiment  is  all  the  qualification 


•Published  in  10th  Louisiana  Reports,  pp.  iil-xv.  1837.  The  date  on  which 
the  address  was  delivered  is  not  shown,  but  it  is  almost  certain  it  took  place 
in  January  1837,  contemporaneously  with  Etienne  Mazureau's  panegyric  on 
Judge  Mathews.  The  scene  may  have  been  the  court  room  of  the  Supremo 
Court,  though  this  is  not  certain. 


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I  possess  for  the  trust  assigned  me,  and  I  must  crave  your 
indulg^ence,  if  tHei  pressing  nature  of  my-  daily  avocations, 
has  left  me  insufficient  leisure  to  db  justice  to  the 'honor 
conferred  on  me,  and  to  a  full  and  minute  delineation  of 
the  character,  conduct  and  life  of  a  man  so  eminent,  and  who  re- 
ceived so  large  a  tribute  of  the  public  esteem  and  veneration. 

The  most  natural  introduction  to  what  I  have  to  say  on  the 
life  and  character  of  Judge  Mahews,  will  be  to  lay  before  you 
such  particulars  of  his  parentage,  early  life  and  private  fortunes 
as  on  inquiry  I  have  been  able  to  procure. 

The  subject  of  our  discourse  was  born  on  the  21st  September, 
1774,  a  f jBw  miles  below  Staunton,  in  Augusta  County,  State  of 
Virginia.  ,    .   .     ,  .  .  : 

At  the  time  of  his  births  his  father  was  absent  on  that  me- 
morable expedition  which  was' terminated  by  the  battle  at  the 
mouth  of  tl^e  Great  Kenhawa,  on  the  10th  October,  of  the  same 
year.  He, was  called  George  (the  name  pf  his  father)  by  his 
mother,  who  dpubted  the  return  of  her  husband. 

From  his  birth  until  the  age  of  ten  year5,  all.  the  educa- 
tion and  instruction  he  received  \yas  from  his  mother,  a  lady  dis- 
tinguished for  her  excellent  mind  and  other  qualities — liis  father 
being  absent  the  greater  portion  of  that  time  in  the  service  of  his 
country. 

In,  the  year  1785,  the. father  of  Judge  Mathews  removed  to 
the  State  of  Georgia  with  his  family,  and  settled  in  what  was 
th^n  called  Wilkes  County,,  afterwards  called  Oglethorpe,  on 
Broftd  River,  at  a  place  known  as  the  Goose  Ponds,  at  that  time 
on  the  frontiers  of  Georgia,  ;\yhere  George  Mathews  remained 
until  the  ypar  1792,  receiving  pnly  such  instruction  as  frontier 
counties  at  that  period  affprded. 

In  the  year  1792,  in  the  eighteenth  year  of  his  age,  he  re- 
turned to  Virginia,  and  in  1794  became  a  member  of  an  academy 
known  as  Liberty  Hall,  in  the  town  of  J^exington,  Rockbridge 
County,  where,  during  the  years  1794-95,  he  finished  his  course 
of  academical  studies. 

In  1796,  being  then  twenty-two  years  of  age,  he  returned 
to  Georgia,  and  commenced  the  study  of  the  law  with  his  eldest 
brother,  John  Mathews,  with  whom  he  continued  until  the  year 
1798.  In  that  year  he  went  to  the  city  of  Augusta,  and  finished 


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Life  and  Characters  of  the  Hon.  Geo.  Mathews         191 

his  law  studies  with  George  Walker,  one  of  the  most  eminent 
lawyers  in  the  State.*  ' 

In  the  year  1799,  in  his  twenty-fifth  year,  he  was  admitted 
to  the  bar,  and  continued  *  the  practice  of  law  from  that  time 
until  the  year  1805,  when,  without  any  solicitation  on  his  part, 
he  was  appointed  by  Thomas  Jefferson,  Judge  of  the  Territory 
of  Mississippi.  From  thence  he  was  traniaf erred  to  the  territory 
of  Orleans  in  1806,  and  on  the  erection  of  Louisiana  into  a  State 
in  1812,  he  was  appointed  by  Goviernor  Claiborne,  Judge  of  the 
Supreme  Court  of  the  State  of  liouisiana,  and  shortly  after- 
wards, by  the  resignation  of  Judge  Hall,  took  the  place  6i  presid- 
ing judge.  This  station  iie  filled  till  his  decease  oh'th^  14th 
NoveiAber,  1836,  in  the  sixty-tliird  year  of  his  agel  ' 

Judge  Mathews  greatly  attributed  the  formation  of  his  char- 
acter and  his  success  in  life  to  the  higli  intelligence  and  excellent 
qiiaiities  of  his  motliier,  and  the  education  and  instruction  he  re- 
ceived fr6m  her — and  how  ihany  distinguished  men,  amopg  whom 
may  be  named  Washington  and  Napoleon,  have  expressed  the 
most  feiidei*  gratitude  for  the  influence  and  benefits  of  the  ma- 
ternal culture  of  thfeir  riiinds  and  fbrmatiori'of  their  character. 

"the  prize  for  the  best  essay  on  morals  was  latjBly  well  be- 
stowed in  t'rance  on  the  production  of  Martih/ which  treats  of 
the  education  of  women,  or  of  the  civilization  of  mankind  by 
means  of  mothers  of  families.  And  let  me  assure  tny  young 
friends  that  if  they  wish  to  have  ihtielligent  arid*  well  educated 
children,  they  must  give  them  intelligent  and  well  educated 
mothers.  And  what  a  recompense  it  was,  that,  at  the  close  of  a 
long  life,  the  son  remembers  with. gratitude  and  tenderness  the 
benefits  and  instruction  h^  received  from  his  mother.  It  is  only 
to  our  children  we  can  piay  the  debt  we  bwe  to  6ur  parents. 

But  if  his  mother  was  distinguished  for  the  excellencies 
and  proper  qualities  of  a  woman  and  a  mother,  his  fkther  was 
not  less  distiriguished  for  his  heroic  Virtues  as  a  patriot,  his  lofty 
character  and  dieirvices  as  a  citizeii,  and  his  sbund  judgment  and 
excellent  sense  as  a  mati. 

We  have  seen  that  Colonel  MatheWs  was  engaged  in  the 
campaign  against  the  Indians,  wliich  terminated  in  that  battle. 


♦  Young:  Mathews  had  a  great  desire  to  follow  the  profession  of  medi- 
cine, but  in  £his  wisli  he  was  overruled  by  his  father,  whose  discerning  mind 
perceived  that  his- son's  character  was  better  adapted  to  the  profession  of  law. 
He  always,  however,  had  a  great  fondness  for  medical  studies. 


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192  The  Louisiana  Historical  Quarterly 

memorable  in  our  frontier  warfare,  at  the  mouth  of  the  Ken- 
hawa,  which  entirely  broke  the  power  of  the  savage  tribes,  at 
the  time  that  the  subject  of  our  discourse  was  born.  Nor  did  his 
services  end  with  this  event.  His  valor  and  skill  as  a  military 
man  were  duly  appreciated  by  his  fellow-citizens.  He  was 
placed  at  the  head  of  a  regiment  of  the  Virginia  line,  in  our  revo- 
lutionary struggle  with  Gr^at  Britain,  and  largely  did  he  share 
in  the  danger  and  glory  of  that  mighty  undertaking.  It  is  told 
of  him,  in  history,  that  he  acted  a  distinguished  part  on  the 
occasion  of  the  battle  of  Germantown,  when  our  great  com- 
mander attacked  the  British  army.  The  attack  was  made  early 
in  the  morning — the  battle  ground  consisted  of  fields  intersected 
with  fences  and  stone  walls — ^there  was  a  dense  fog.  When  the 
order  of  attack  was  given.  Colonel  Mathews,  at  the  head  of  his 
regiment,  made  a  furious  onset  over  ground  entangled  with 
fences,  and  forced  the  British  lines.  One  part  of  the  American 
army  fell  into  some  confusion,  which  prevented  a  complete  vic- 
tory, and  an  order  to  retreat  was  given. 

Colonel  Mathews  either  did  not  receive  the  order  to  retreat, 
or  in  the  obscurity  of  the  fog,  and  led  on  by  the  fury  of  his 
charge,  advanced  so  far  beyond  the  American  line,  as  to  get  in 
the  r^ar  of  the  British  army — and  there  he  was  left,  cut  off  from 
his  compatriots,  when  the  American  army  retired,  On  this  occa- 
sion he  was  taken  prisoner. 

He  was  equally  distinguished  for  his  civic  virtues  and  ser 
vices.  Not  long  after  he  removed  to  Georgia,  he  was  elected 
governor,  of  that  State,  and  received  the  praise  of  being  one  of 
the  best  governors  in  the  United  States,  from  that  most  cynical 
of  men,  the  celebrated  John  Randolph, 

Governor  Mathews  afterwards  removed  to  the  neighborhood 
of  Natchez,  in  the  Territory  of  Mississippi  where  he  afterwards 
died  at  an  advanced  age. 

From  such  ancestors  was  descended  the  late  Judge  Mathews 
— and  if  it  be  not  altogether  true,  that  virtues  and  vices  are  he- 
reditary, yet  from  a  mother  possessing  so  many  excellent  qualities, 
and  a  father  so  distinguished  for  his  civil  and  military  virtues, 
a  son  could  not  fail  to  derive  sentiments  and  a  character,  which 
would  stamp  him  as  a  useful  citizen. 

How  strong  is  the  incentive  to  virtue  and  honorable  conduct, 
if  we  realized  the  effect  of  example  on  our  children,  and  would 


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Life  and  Characters  of  the  Hon.  Geo.  Mathews         193 

entertain  no  sentiments,  contract  no  habits,  and  commit  no  ac- 
tions which  we  do  not  wish  our  children  to  imitate. 

Another  fact  is  important  in  the  life  of  Judge  Mathews.  I 
have  said  that  he  continued  his  academical  pursuits  till  the  age 
of  twenty-two,  and  was  not  admitted  to  the  bar  till  he  was 
twenty-five  years  of  age.  I  cannot  but  think  that  maturity  of 
mind  and  body,  before  embarking  in  the  pursuits  of  life,  has  a 
great  tendency  in  forming  a  sound  mind  and  character,  and  in 
giving  solidity  to  the  judgment  and  understanding. 

It  ia  also  to  be  observed  that  Judge  Mathews  practised  his 
profession  for  a  very  short  time.  He  was  appointed  a  judge  at 
the  age  of  thirty.  In  ancient  France,  men  were  educated  to  the 
office  of  magistrates — and  perhaps  this  is  the  best  means  of  mak- 
ink  good  judges.  Men  who  have  been  long  engaged  in  the  prac- 
tice of  the  profession,  unless  they  possess  unusual  candor  of 
mind,  identify  themselves  too  much  with  their  clients,  acquire  the 
habit  of  regarding  only  one  side  of  a  question,  and  hence  are  apt 
to  lose  sight  of  the  abstract  principles  of  justice — more  especially 
men  of  great  ingenuity,  who  delight  more  in  the  exercise  of  that 
ingenuity  than  in  the  perception  of  justice.  Too  often  such 
men,  even  on  the  bench,  display  their  ingenuity  in  supporting  one 
side  of  a  question,  or  in  answering  the  arguments  urged  on  the 
opposite  side,  rather  than  in  analysing  and  weighing  the  prin- 
ciples of  law  and  justice  which  ought  to  produce  the  decision. 
These  false  habits  of  mind  are  more  easily  avoided  when  the 
lawyer  early  becomes  the  judge. 

There  are  some  men  who  seem  naturally  fitted  and  destined 
by  the  constitution  of  their  minds,  for  the  station  of  judges. 
Men  who  possess  great  candor;  in  whom  judgment  is  the  pre- 
dominating faculty ;  and  to  whom  the  pursuit  and  attainment  of 
justice  affords  the  highest  mental  gratification.  Such  appears 
to  have  been  the  character  and  constitution  of  mind  of  the  late 
Judge  Mathews. 

A  review  of  the  peculiar  difficulties  of  the  station  he  was 
so  early  called  to  fill,  and  the  manner  in  which  he  acquitted  him- 
self of  its  duties,  will  make  this  manifest.  Appointed  at  the  age 
of  thirty  to  discharge  the  duties  of  a  judge,  according  to  a  sys- 
tem of  law  with  which  he  could  have  had  no  previous  acquaint- 
ance, a  knowledge  of  which  was  locked  up  in  languages,  to  which 


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194  The  Louisiana  Historical  Quarterly 

a  man,  inland  bred,  as  he  was,  must  have  been  a  stranger,  and  on 
which  even  books  were  scarce,  his  mind  must  have  been  fre- 
quently thrown  back  upon  itself  in  the  decisions  he  was  called 
upon  to  make.  Notwithstanding  these  difficulties,  tne  very  able 
bar  which  had  emigrated  to  Louisiana,  from  the  east  and  from 
the  west,  and  from  across  the  ocean,  attest  the  uniform  ability 
and  correctness  of  his  decisions,  even  in  the  early  period  of  his 
magistracy.  Let  it  be  remembered  that  he  was  appointed  to 
preside  over  a  people  who  were  aliens  to  the  government;  who 
felt  uneasy  at  being  transferred  to  a  new  sovereignty  without 
their  consent,  and  were  jealous  of  strangers;  that  he  had  to 
administer  justice  under  laws  of  Spanish  and  French  origin  and 
colonial  legislation,  and  yet  he  succeeded  in  obtaining?  the  con- 
fidence, esteem  and  respect  of  all  classes. 

The  period  between  the  appointment  of  Judge  Mathews  and 
the  adoption  of  the  Constitution,  and  to  the  close  of  the  war  with 
England,  must  be  an  interesting  one  in  the  history  of  the  feelings 
of  the  colonists  of  Louisiana ;  and,  with  this  period  of  time.  Judge 
Mathews  was  intimately  connected,  visiting  every  part  of  the 
state  in  his  circuits,  and  presenting  a  scene  new  to  the  people 
among  whom  it  was  acted.  No  one  but  a  person  who  was  an 
actor  can  adequately  describe  it.  My  own  arrival  in  the  state 
was  long  subsequent  to  these  events ;  and  the  gentleman  who  ad- 
dressed you  in  French,  and  who  was  a  participator  in  the  events 
of  that  period,  has  given  you  some  account  of  it,  and  of  the 
share  of  Judge  Mathews  in  its  occurrence. 

My  personal  acquaintaince  with  Judge  Mathews  commenced 
in  the  year  1822,  when  I  found  him  presiding  in  the  Supreme 
Court  of  the  state.  He  was  then  in  the  vigor  of  his  faculties, 
and  in  high  physical  health,  and  took  upon  him  a  full  share  of  the 
business  of  the  court.  He  possessed  great  quickness  of  mind, 
readily  seizing  upon  the  difficulties  and  disputed  points  of  a 
case.  He  was  patient  in  listening  to  whatever  could  be  urged  in 
the  way  of  argument  or  illustration,  but  his  mind  was  too  clear 
to  be  led  astray  by  sophistry  or  ingenuity. 

Judge  Mathews  was  a  great  lover  of  justice;  and  if  it  was 
possible  in  any  manner*  to  reach  the  justice  of  a  case  without 
violating  fixed  principles  of  law,  he  would  always  do  so.  The 
nature  of  civil  law  jurisprudence  requires  of  a  judge  to  refer 


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Life  and  Characters  of  the  Hon.  Geo.  Mathews         195 

back  to  the  principles  of  law  applicable  to  the  facts  of  the  case, 
rather  than  rest  the  decision  on  precedents,  or  the  authority  of 
other  decided  cases;  and  this  is  surely  the  correct  mode  of  ad- 
ministering justice  where  law  is  reduced  to  a  science  and  ita 
principles  collected  in  elementary  works;  for,  if  the  cases  are 
analogous,  the  principles  invoked  in  the  previous  case  ought  alone 
to  be  the  reason  for  deciding  the  subsequent  ones.  As  a  celebrated 
chancellor  of  England,  having  one  of  his  own  decisions  pressed 
upon  him  as  authority,  exclaimed,  "Do  not  tell  me  how  I  decided — 
tell  me  why  I  so  decided."  This  species  of  jurisprudence,  there- 
fore, admirably  suited  the  mind  of  Judge  Mathews,  for  the 
Civil  Law  is  the  very  essence  and  source  of  equitable  jurispru- 
dence. 

If,  by  learning,  be  meant  an  original  intimate  acquaintance 
with  all  the  books  in  his  profession,  Judge  Mathews,  no  more 
than  his  distinguished  prototype.  Judge  Marshall,  could  be  said 
to  be  a  learned  lawyer;  but  he  possessed  a  perfect  familiarity 
Avith  elementary  writers,  and  having  embodied  the  principles  of 
the  science  of  law  with  his  own  perceptions,  it  was  not  difficult 
for  him  to  work  out  and  deduce  the  proper  result  by  the  opera- 
tions of  his  own  mind,  on  the  materials  it  possessed;  and  an 
early  familiarity  with  the  Latin  language,  and  with  French  and 
Spanish  afterwards  acquired,  enabled  him,  when  his  investiga- 
tions called  for  their  examination,  to  avail  of  the  aid  of  the  J)est 
writers  in  the  original  languages. 

The  minds  and  professional  character  of  judges  and  lawyers 
may  be  divided  into  two  different  classes.  There  is  one  class 
who  know  the  profession  of  law  as  a  result  of  memory;  who  store 
their  minds  with  authorities,  cases  and  dicta,  and,  when  called 
to  act  in  their  profession,  rely  on  books,  cases  and  authorities, 
and  are  nothing  without  them.  They  know  law  as  the  student 
learned  mathematics,  by  committing  Euclid  to  memory,  with- 
out being  able  to  explain  the  principles  on  which  any  one  propo- 
sition is  demonstrated.  Among  this  class  of  the  profession  may 
usually  be  ranked  those  who  have  been  deprived  of  an  early  reg- 
ular education,  or  have  taken  up  the  profession  late  in  life,  and 
also,  those  who  are  naturally  deficient  in  the  organ  of  intellec- 
tual system  and  arrangement.  With  this  class  of  persons,  law 
is  not  a  system,  but  an  undigested  mass  of  particulars,  without 
arrangement,  connection,  or  dependence. 


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196  The  Louisiana  Historical  Quarterly 

There  is  another  class  who  embody  the  principles  of  the 
science  with  their  own  perceptions,  and  mix  them  up  with  their 
elements  of  thought,  and  when  called  upon  to  give  an  opinion, 
their  decisions  are  the  results  of  the  operations  of  their  own 
minds. 

With  the  first  class,  law  is  an  effort  of  memory  of  what  has 
been  said,  written  or  decided  by  others ;  or,  frequently,  no  more 
than  a  knowledge  of  the  books  which  treat  on  the  different  sub- 
jects of  the  science;  with  the  other  class,  law  is  an  emanation  of 
their  own  minds,  and  they  speak  as  being  authorities  themselves. 

Such  was  eminently  the  case  with  the  late  Chief  Justice 
Marshall,  whose  decisions  required  no  authorities  to  support 
them,  and  such  also  was  the  character  of  the  judicial  mind  of  the 
late  Judge  Mathews. 

Neither  judges  nor  courts  are  infallible,  but  the  character 
of  mind  of  judges  as  well  as  their  knowledge,  has  much  effort  on 
the  general  soundness  and  correctness  of  the  conclusions  at  which 
they  arrive. 

If  we  examine  the  decisions  delivered  by  Judge  Mathews,  ana 
which  it  must  be  considered  were  left  principally  to  his  own  in- 
vestigation, it  will  be  found  that  the  decision  is  almost  without 
exception,  in  accordance  with  sound  reason,  with  law  and  With 
justice. 

In  all  the  judgments  delivered  by  him  the  case  is  analysed 
with  a  view  to  exhibit  the  various  relations  of  the  rights  of  the 
parties,  and  the  decision  is  deduced  like  a  mathematical  proposi- 
tion, from  the  relation  which  those  rights  and  duties  bear  to  each 
.  other.  This  decision  was  not  delivered  in  a  dry,  hard  and  repul- 
sive form — in  which  it  was  difficult  to  perceive  the  steps  which 
led  from  the  premises  to  the  conclusion.  It  was  deduced  in  a 
clear,  methodical  and  lucid  manner,  which  was  easily  followed, 
and  ended  in  giving  satisfaction  to  the  understanding. 

The  composition  of  his  decisions  is  neat  and  elegant — ^his  lan- 
guage pure  and  correct — the  sentences  .are  well  put  together,  and 
the  style  fluent,  rising  sometimes  to  a  chastened  eloquence,  which 
is  the  only  kind  the  decisions  of  a  court  admit  of. 

Judge  Mathews  possessed  in  an  eminent  degree  that  great 
essential  requisite  quality  in  a  judge,  firm  and  unbending  integ- 
rity, which  drew  to  him  the  public  confidence.     It  is  wonderful 


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Life  and  Characters  of  the  Hon.  Geo.  Mathews  197 

how  much  sound  morality  contributes  to  produce  sound  judgment 
and  sound  intellect.  Whether  in  law,  politics,  legislation,  or  any 
other  subject — the  instinct,  as  some  would  call  it,  of  an  honest, 
uneducated  and  even  ignorant  man,  will  lead  him  to  adopt  right 
conclusions  and  opinions,  whilst  the  intellect  of  the  most  educated 
and  talented,  when  at  alh  affected  by  interest  or  passions,  will 
lead  them  astray  on  the  plainest  subjects.  In  this  sense  it  is  true 
that  vox  populi,  est  vox  Dei.  For  although  the  people  may  be 
misled  by  passion  and  prejudice  to  commit  rash  actions,  their  ulti- 
mate opinions  and  conclusions  are  always  right — for  no  personal 
interest  warps  and  blinds  their  judgment  and  perceptions,  as  is 
too  generally  the  case  with  those  who  assume  to  lead  in  life. 

To  a  mind  not  corroded  by  the  passions,  or  harrassed  by 
cares  and  disquietudes,  the  business  of  judging  is  not  difficult. 
The  difficulty  is  to  find  the  man  well  educated  in  his  profession 
not  goaded  by  ambition  or  the  lust  of  wealth,  free  from  cares, 
and  willing  to  devote  himself  to  serve  the  public  in  this  capacity 
— and  such  a  man  is  the  highest  gift  of  the  providence  of  God 
to  a  people.  In  all  these  respects,  as  well  as  in  the  possession 
of  a  natui'ally  sound  judgment  and  discriminating  mind.  Judge 
Mathews  greatly  excelled.  He  did  not  discover  justice  solely  by 
the  penetration  of  his  mind,  but  also  by  a  certain  instinct,  and 
his  heart  moved  towards  it  as  towards  a  beloved  object.  The 
passions  which  troubled  others  did  not  affect  him.  Without  am- 
bition, he  seemed  wholly  devoted  to  discharge  the  high  functions 
of  a  minister  of  justice. 

To  these  admirable  qualities  as  a  judge,  was  ignited  the 
most  amiable  exterior.  The  spirit  of  domination  not  reigning 
within  him,  did  not  manifest  itself  in  his  deportment.  His  mild- 
ness, amiability  and  patience  became  the  station  of  a  judge,  and 
sometimes  a  dryly  humorous  remark,  relieved  the  heaviness  o^ 
legal  discussion. 

The  members  of  the  bar  will  never  forget  that  venerable  and 
patriarchal  head  and  countenance  on  which  were  depicted  benev- 
olence, intelligence  and  goodness— that  patient  attention,  aided 
by  a  quick  perception  of  the  real  points  of  controversy  which 
was  given  to  every  one  who  addressed  him.  Every  advocate  felt 
that  he  was  appealing  for  justice  not  only  to  the  living  oracl^  of 
law,  but  to  the  impersonation  of  justice  herself.    In  addition  to 


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these  excellent  qualities  he  presided  with  great  dignity  on  the 
bench,  and  commanded  the  respect  of  all  who  approached  him.* 

Judge  Mathews  inherited  but  little  property  from  his  father, 
and  his  fortune,  ample  at  the  time  of  his  decease,  was  the  result 
of  his  economy  and  judicious  management.  He  always  lived  in  a 
retired  manner,  without  any  extravagance  or  ostentation,  yet 
without  denying  himself  any  thing  that  his  fortune  enabled  him 
to  attain,  or  that  his  station  required.  Happy  in  his  family,  his 
whole  life  was  accompanied  by  a  prosperity  of  that  modern  na- 
ture, which,  without  dazzling  the  mind,  or  corrupting  the  heart, 
diffuses  a  pure  and  tranquil  feeling,  which  constitutes  the  hap- 
piness of  the  wise  and  the  good.  He  was  cheerful  and  lively 
in  private  life,  and  his  conversation  was  tinged  with  a  vein  of 
humor  which  greatly  enlivened  his  society. 

Such  was  the  man  whom  it  pleased  Providence*  to  send  to 
preside  over  Louisiana  in  her  infant  condition,  and  such  was 
the  man  who  is  felt  to  be  an  irreparable  loss  to  the  State.  I 
fear  that  amidst  the  distractions  and  dissipations  of  active  life, 
we  do  not  sufficiently  consider  how  great  and  good  a  man  is  lost 
to  us. 

Let  us  pause,  look  around,  and  ask  each  other  how  many  are 
there  qualified  to  fill  the  important  station  lately  occupied 
by  Judge  Mathews,  so  honorably  to  himself,  so  usefully  to  the 
public.  How  many  are  there  in  whose  integrity,  talents,  honor 
and  knowledge,  the  citizens  of  Louisiana  will  repose  with  the 
same  confidence  the  high  duties  of  administering  justice  in  the 
last  resort,  as  they  felt  in  Judge  Mathews.  In  whom  will  be 
found  united  the  same  capacity,  soundness  of  judgment,  talents, 
purity  of  character,  amiability  of  disposition,  simplicity  of  life 
and  venerable  aspect. 

The  duties  of  a  judge  are  those  of  painful  responsibility, 
even  when  supported  by  a  consciousness  of  rendering  great  pub- 
lic service.  It  is  his  duty  as  a  minister  of  justice  to  look  to  the 
God  of  Justice  for  guidance,  direction  and  assistance.  It  has 
been  well  said,  Judicare  est  orare,  that  to  judge  is  to  pray,  for 
there  ought  to  rest  upon  the  mind  a  solemn  religious  sense  of 
duty,  in  meting  out  justice  among  our  fellow  men.     It  is  an  aw- 


•  In  his  personal  appearance  Judge  Mathews  was  of  the  middle  stature, 
and  constitutionally  disposed  to  corpulence,  which  even  much  exercise  could 
not  repress.  His  countenance  was  always  placid,  with  a  lurking  expression  of 
humor,  indicating  playfulness  of  mind,  ajid  a  di^k>08ltion  to  repartee,  and  many 
excellent  ones  are  told  of  him. 


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Life  and  Characters  of  the  Hon.  Geo.  Mathews         199 

ful  and  responsible  duty,  and  those  who  most  feel  its  responsi- 
bility, least  aspire  to  court  its  labors.  Yes,  fellow-citizens,  the 
station  and  office  of  a  Judge  of  the  Supreme  Court,  of  a  court 
of  last  resort,  is,  in  any  country,  an  honorable,  and  important, 
and  a  difficult  station.  It  is  emphatically  and  peculiarly  so  in 
Louisiana.  The  Court  is  entrusted  with  a  revision  of  the  rights 
of  parties,  not  only  on  all  branches  of  the  law,  but  also  as  to 
questions  of  fact,  and  in  the  complication  and  conflict  of  Spanish, 
French,  English  and  American  law,  and  by  reason  of  the  various 
legislative  enactments,  to  modify  and  adapt  them  to  our  political 
and  social  institutions  and  feelings,  much  delicate  responsibility, 
and  great  extent  of  power  have  devolved  on  the  judiciary — and 
in  that  branch  of  the  administration  of  the  government,  it  was 
and  is  peculiarly  necessary  to  have  honorable,  upright  and  in- 
flexible men,  in  whose  judgment,  capacity,  integrity  and  power 
of  discrimination,  his  fellow-citizens  should  repose  with  implicit 
confidence.  If  the  public  do  not  repose  with  confidence  in  the 
integrity,  ability,  virtue  and  character  of  the  judges,  there  will 
exist  a  restlessness,  a  vague  apprehension  of  evil,  an  uncertainty 
and  discontent,  which  poisons  and  embitters  the  enjoyment  of 
life — more  particularly  with  a  people  so  sensible  of  and  justly 
valueing  their  personal,  political  and  social  rights,  as  are  the 
citizens  of  republican  America. 

It  is  this  confidence  and  the  consciousness  of  usefulness,  and 
not  the  slender  compensation,  which  rewards  the  judge  and 
sustains  him  under  his  load  of  labor  and  responsibility.  How 
important  then  is  a  just  discharge  of  the  duties  of  this  high  sta- 
tion. How  important  that  the  persons  who  fill  it  should  possess 
the  public  confidence.  How  transcendently  honorable  and 
praiseworthy  must  be  the  life  and  character  of  that  man,  who, 
on  closing  a  career  of  thirty  years  in  such  a  station,  receives  the 
unanimous  approbation,  commendation  and  regret  of  his  fellow- 
citizens  of  all  classes,  ranks  and  parties,  among  a  population  com- 
posed of  the  descendants  of  the  nations  of  France  and  Spain,  and 
ot  emigrants  from  every  state  in  the  Union. 

The  regret  felt  on  the  tidings  of  the  decease  of  the  late  Judge 
Mathews  manifested  how  fully  his  character  and  conduct  re- 
ceive the  general  approbation — ^the  approbation  of  all  Louisiana* 
It  was  the  regret  of  the  fathers  of  the  land  for  a  brother — a  man 
whom  they  had  known  from  early  youth — whose  virtues  and 


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character  were  their  study  for  the  whole  of  a  past  age.  It  was 
the  grief  of  the  men  of  active  life  at  the  loss  of  a  friend — of  a 
counsellor  of  the  state.  It  was  the  grief  of  those  just  entering 
life  at  the  loss  of  a  father — a  guide  and  an  example.  It  was  the 
grief  of  the  whole  community  at  the  loss  of  an  honorable  and 
upright  magistrate. 

Truly  and  eloquently  is  it  expressed  in  the  resolutions  passed 
by  the  members  of  the  bar,  "That  they  deeply  deplore  the  death 
of  the  Honorable  George  Mathews,  late  presiding  judge  of  the 
Supreme  Court  of  this  state. 

"That  they  consider,  that  in  him  society  has  lost  a  virtuous 
citizen,  the  state  an  able  and  upright  judge,  and  the  profession 
one  of  its  brightest  ornaments ;  and  that  the  rectitude  and  ability 
with  which,  during  a  long  series  of  years,  the  deceased  has  dis- 
charged the  arduous  duties  of  the  most  important  and  respon- 
sible station  kno^Ti  to  a  republican  government,  entitle  his  mem- 
ory to  the  respect  and  veneration  of  his  countrymen." 

Upon  this  review  of  the  life  and  character  of  Judge  Math- 
ews,, I  proceed  to  pass  a  judgment  which  will  be  confirmed  by 
this  assembly,  and  by  all  Louisiana, — ^that  the  name  and  repu- 
tation of  Judge  Mathews  shall  pass  down  with  the  early  history 
of  the  state,  as  of  one  beloved  for  his  virtues  as  a  man,  honored 
for  his  seryices  as  a  citizen,  and  distinguished  and  revered  for 
his  talents,  integrity,  judgment  and  usefulness  as  a  magistrate. 
That  he  possessed  the  unbounded  respect,  esteem,  confidence  and 
veneration  of  Louisiana,  during  his  life,  and  the  heartfelt  regret 
and  grief  of  his  fellow-citizens  were  testified  at  his  death. 

May  this  feeble  portrait  and  testimony  to  his  life  and  char- 
acter, serve  as  an  incentive  to  us  and  our  children  to  love,  re- 
spect and  revere  the  name  of  Judge  Mathews,  and,  above  all,  to 
imitate  his  virtues.  That  although  all  cannot  attain  to  the  same 
degree  of  distinction  and  usefulness,  yet  every  one  may  possess 
the  conscious  satisfaction  of  having  in  his  day  and  generation, 
and  to  the  extent  of  his  talents  and  opportunities,  deserved  well 
of  the  Republic* 


♦  Judge  Mathews  was  twice  married;  first  to  Sarah  Carpenter,  of  the 
Territory  of  Mississippi,  in  1808,  of  which  marriage  only  one  child  survived, 
now  the  wife  of  Captain  William  H.  Chace,  of  the  United  States  Engineers, 
.and  a  second  time  to  Harriet  Flower,  of  which  marriage  only  one  child,  a  boy 
of  twelve  years  of  age,  survived.  A  few  days  before  the  decease  of  Judge 
Mathews,  this  youth  received  the  contents  of  his  own  gun  in  his  right  arm  by 
Imprudently  thrusting  the  butt  of  the  gun  into  the  bushes  to  frighten  .out  the 
game,  ft  was  at  first  apprehended  he  would  lose  the  arm,  but  this  misfor- 
tune was  avoided.     This  accident  never  came  to  the  knowledge  of  his  father. 


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FIRE  PROTECTION  IN  NEW  ORLEANS  IN 
UNZAGA'S  TIME 


From  Cabildb  Archives,  Louisiana. 
Edited  by  Henry  P.  Dart. 


Ordinance    of    Governor    Unzaga    Requiring    Meohanica   to    Attend    Fires    and 

Prescribing    Penalties  for    Neglect   of    Rule   Concerning 

Chimnies  and  Open  Fires. 


This  ordinance  is  undated  but  being  French  we  locate  it  in  the 
period  shortly  after  O'Reilly's  "conquest"  when  French  was  still 
used  in  the  public  proclamations.  It  shows  the  primitive  condition 
of  New  Orleans  as  to  fire  protection  and  is  interesting  as  a  speci- 
men of  Spanish  laws  and  legislation  by  the  Executive. 

The  translation  is  by  Mrs.  H.  H.  Cruzat  and  is  followed  by  the 
text. 


Ordinance  of  Gov.  Unzaga  Concerning  Fires. 

Don  Luis  de  Unzaga  y  Amezaga,  Colonel  in  His  Majesty's  armies, 
Intendant  of  Finances  and  Governor  General  of  this  Pro- 
vince of  Louisiana: 

Be  it  known  to  all  citizens  and  inhabitants  that  sad  experience 
having  shown  us  the  little  inclination  existing  among  private  in- 
dividuals to  lend  the  necessary  help  in  case  of  need>  on  the  occasion 
of  fire,  and  the  lack  of  promptitude  in  hastening  to  help,  being 
unprovided  with  the  proper  objects  suited  to  that  purpose,  such 
as  ladders,  axes,  gaffs,  pick-axes  and  buckets,  the  indifference  to 
the  rights  of  humanity  and  the  want  of  foresight  for  their  own 
interests,  the  evil  being  liable  to  spread,  and  above  all  the  small 
number  of  persons  assembling  to  cut  off  the  danger  of  confla- 
grations, our  attention  to  watch  over*all  the  subjects  of  this  gov- 
ernment and  to  give  our  utmost  care  to  their  happiness  and  tran- 
quility, though  we  do  not  suppose  that  any  of  them  be  sufficient- 
ly discouraged  to  refuse  to  adhere  to  the  natural  obligation  of 
preventing  the  evils  which  might  befall  them,  however,  we  have 
deemed  it  urgent  to  have  recourse  to  the  most  efficacious  means 


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which  prudence  can  dictate,  by  encouraging  those  inspired  by  an 
ardent  zeal  for  the  public  good,  and  by  punishng  those  who  ob- 
stinately and  inhumanly  refuse  to  extend  the  necessary  succor  to 
arrest  the  progress  of  the  flames  in  consequence  of  which,  we  have 
exhorted,  incited  and  do  exhort  and  incite,  and,  for  greater  safety, 
order  and  command: 

That  at  the  first  sound  of  the  bells  which  will  ring  with  that 
of  the  principal  guard-house  to  notify  that  there  is  a  fire,  all  the 
carpenters  and  joiners  of  this  town,  be  they  whites  or  negroes, 
slaves  of  private  houses,  shall  hasten  punctually  and  promptly 
with  axes,  gaffs,  pick-axes,  and  clubs  to  the  place  where  fire  has 
broken  out,  to  cut  and  throw  down  entirely,  or  in  part,  the  build- 
ing in  danger  of  burning,  as  need  be,  conformably  to  the  intention 
which  guides  them  in  rendering  so  important  a  service  to  the'r 
country,  under  penalty  of  imprisonment  and  a  fine  of  one  ducat 
for  the  whites  and  other  free  men  who  will  fail  to  attend. 

It  is  likewise  ordered  that  all  citizens,  without  exception,  be 
held  to  have  in  their  houses  ladders,  buckets,  axes,  pick-axes,  gaffs 
ready  for  use  in  case  of  an  emergency,  under  penalty  for  the 
delinquent  of  a  fine  of  four  ducats,  and  one  of  five  ducats  for  their 
negro  slaves  who  will  fail  to  hasten  to  help  in  extinguishing  the 
fire,  the  said  fines  applicable  to  the  purposes  of  justice. 

Moreover,  we  order  and  ordain  that  all  proprietors  of  houses 
repair  their  chimneys  and  put  them  in  safe  condition,  and  we 
prohibit  the  lighting  of  fires  in  the  centre  of  houses  or  cabins; 
where  there  are  no  chimneys,  we  order  that  they  be  built  imme- 
diately, under  penalty  of  having  them  built  at  owners'  expense. 

Ordered  that  the  present  be  read,  published  to  the  beat  of  the 
drum,  and  posted  in  the  customary  placeg  of  this  town. 

,Given  in  our  Government  House,  at  New  Orleans, 
Signed:  "Luis  de  Unzaga  y  Amezaga". 

"By  order  of  His  Lordship." 
"Signed :  "Garic,  Government  Scrivener." 


Original  Text: 

Ordinance  of  Gov.  Unzaga  Concarning   Firaa. 

Don  Luis  de  Unzaga  y  Amezaga,  Colonel  des  Armies  de  Sa 
Majesty,  Intendant  des  Finances  et  Gouverneur  General  de 
cette  Province  de  la  Louisiane : 


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Fire  Protection  in  Unzaga's  Time  203 

Scavoir  faisons  a  tous  citoyens  et  habitans  que  la  triste  ex- 
perience nous  ayant  fait  apercevoir  du  peu  de  disposition  qui 
regne  dans  le  particulier  a  donner  les  secours  necessaires  et  au 
besoin  lors  de  quelque  incendie,  de  la  foible  promptitude  a  y  ac- 
courir  sans  estre  muni  des  objects  propres  et  convenables,  comme 
des  echelles,  baches,  gaffes,  pics  et  sceaux :  de  Tindif f erence  aux 
droits  de  Thumanite  et  du  peu  de  pr6voyance  a  ses  propres  in- 
terests, le  mal  pouvant  devenir  commun,  et  enf  in  du  peu  de  monde 
qui  s'assemble  pour  couper  court  au  danger  dans  les  incendies, 
notre  attention  a  veiller  et  a  donner  tous  nos  soins  au  bonheur  et 
a  la  tranquilite  d  etous  les  sujects  de  ce  gouvernment,  malgre  que 
nous  ne  presumions  point  que  quique  ce  soit  puisse  estre  assez  d6- 
courage  pour  se  refuser  a  Tobligation  naturelle  de  pr^venir  les 
maux  qui  pourroieilt  fondre  sur  luy;  nous  avons  cru  nonobstant 
devoir  pratiquer  les  moyens  les  plus  efficaces  que  la  prudence 
puisse  dieter  en  encourageant  ceux  qu'un  zelle  ardent  pour  le  bien 
public  attire,  et  en  punissant  ceux  obstines  qui  se  refuseront  in- 
humainement  a  donner  les  secours  necessaires  pour  eviter  les 
progres  des  ^ammes,  en  consequence  de  quoy,  nous  avons  exhorte, 
incite,  exhortons  et  incitons,  et  pour  la  plus  grande  surete,  ordon- 
nons  et  mandons  qu'au  premier  son  des  cloches  qui  sonneront,  y 
jointe  celle  du  corps  de  garde  principal,  pour  avertir  du  feu  tous 
les  charpantiers,  menuisiers  de  cette  ville,  soit  blancs  ou  negres, 
les  esclaves  des  maisons  particuli&res,  ayent  a  accourir  precize- 
ment  et  promptement  avec  des  haches,  gaffes,  pics  et  massues  aux 
endroits  ou  le  feu  aura  pris  pour  couper  et  abattre  en  tout  ou  en 
partie,  le  batiment  qui  sera  dans  le  cas  de  bruler,  suivant  ce  qui 
sera  n6cessaire  et  conformement  a  Tintention  qui  les  dirigera  de 
rendre  un  service  si  distingue  a  la  patrie,  a  peine  pour  les  gens 
blancs  et  autres  libres  qui  manqueront,  de  qunze  jours  de  prison 
et  d'un  ducat  d'amende. 

Ordonnons  pareillement  que  tous  les  citoyens,  sans  exception, 
seront  tenus  d'avoir  dans  leurs  maisons  des  6chelles,  sceaux,  (i) 
haches,  pics  ou  gaffes  prets  au  besoin  dans  les  cas  pressants,  a 
peine  contre  le  delinquant  de  quatre  ducats  d'amende,.  et  de  cinq 
ducats  pour  leurs  negres  esclaves  qui  manqueront  d'accourir  au 
secours,  les  dites  amendes  applicables  aux  peines  de  justice. 

Mandons  et  ordonnons  en  outre  a  tous  proprietaires  des 
maisons  de  reparer  leurs  chemin^es  et  de  les  mettre  en  etat,  et  de- 
fandons  a  tous  gen6ralement  quelconques  de  faire  du  feu  dans  le 


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204  The  Louisiana  Historical  Quarterly 

milieu  des  maisons  ou  cabanes ;  ou  il  n V  auroit  point  de  cheminee 
leur  ordonnons  d'en  faire  construire  incessamment,  a  peine  centre 
ceux-ci  de  le  faire  faire  a  leurs  depens.  Et  ordonnons  que  le 
present  sera  lue,  publie  au  bruit  du  tambour,  et  affiche  aux  lieux 
accoutum6s  de  cette  ville. 

Donne  en  notre  Hotel  du  Gouvernement,  a  la  Nouvelle  Or- 
leans. 

Luis  de  unzaga  y  Amezaga.  Par  mandement  de 

Sa  Seigneurie 
Garic,  Ecrivain  du 
Government, 
(i)  sceaux  meant  for  seaux — pails  or  buckets. 
Sceaux  (seals). 


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THE  OATH  OF  ALLEGIANCE  TO  SPAIN 


From  Cabildo  Records.  New  Orleans, 
Edited  by  Henry  P.  Dart. 


O'Reilly  took  formal  possession  of  the  colony  of  Louisiana 
for  Spain  August  18th,  1769,  and  immediately  despatched  orders 
to  the  different  posts  to  administer  the  oath  of  allegiance  to  the 
inhabitants  or  to  send  representatives  to  take  it  in  their  name 
before  him.  At  Pointe  Coupee  it  was  administered  Sept.  10  and 
in  Illinois  Nov.  19th  of  the  same  year.  The  Spanish  portion  of 
Illinois  was  governed  by  Louis  St.  Ange  de  Bellerive,  who  had 
transferred  to  the  English  the  portion  allotted  to  them  by  the 
treaty  of  Paris.  The  Spanish  flag  had  floated  over  Illinois  under 
Ulloa  and  St.  Ange  was  highly  respected  by  the  Spanish  Envoy, 
who  deputed  him  to  act  in  his  name  on  this  important  occasion. 

ji.  M.  C 


No.  I. 


Oath  of  Allegiance  to  the  King  of  Spain  Taken  by  the  Inhabitants  of  Illinois 
Before  Lous  8t.  Ange  de  Bellerive. 

Translation : 

In  the  year  one  thousand  seven  hundred  and  sixty-nine,  on 
this  nineteenth  of  November,  we,  Louis  St.  Ange  de  Bellerive, 
Captain,  commanding  the  Spanish  colony  at  Illinois,  ceded  by  His 
Most  Christian  Majesty  to  His  Catholic  Majesty,  by  virtue  of  the 
orders  addressed  to  us  by  His  Excellency,  My  Lord  O'Reilly,  Com- 
mander of  Benfayan,  of  the  Order  of  Alcantara,  Lieutenant 
General  and  Inspector  General  of  His  Catholic  Majesty's  armies, 
Captain  General  and  Governor  of  the  Province  of  Louisiana,  in 
consequence  of  the  act  of  possession  which  we  have  just  taken  of 
the  said  colony  in  the  name  of  his  said  Catholic  Majesty, 

We  order  that  all  subjects  of  this  colony  who  wish  to  remain 
here  under  the  domination  of  His  said  Majesty,  take  the  oath  of 
allegiance  which  He  demands,  and  on  the  moment,  being  as- 


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sembled  in  the  Chamber  of  the  said  Government,  we  made  them 
take  the  oath  of  fidelity  as  follows,  viz : 

That  they  promise  and  swear  to  God  and  to  His  Catholic 
Majesty  to  be  fathful  to  him  and  to  sacrifice  their  lives  for  his 
service,  to  warn  him  or  his  commandants  of  anything  coming  to 
their  knowledge  prejudicial  to  his  state  or  to  the  support  of  his 
crown  and  of  his  person,  and  to  live  under  the  laws  it  shall  please 
His  said  Catholic  Majesty  to  impose  on  them,  to  all  of  which  sub- 
mitted those  hereafter  named  whose  names  are  hereafter  desig- 
nated and  marked : 


LEFEBVRE  DEBRUISSAU. 

Labuxiere. 

Baron 

Conde. 

Dubreuil 

Sarpy 

Aug.  Chouteau. 

Laville. 

francois  Le  Page. 

Mallard. 

Antoine  Berard 

Laclede  Liguest. 

Pery. 

Cambas. 

Eouchier. 

Cotte. 


hivon. 

Jh  Second. 

Rene  Kiercereau. 

Dodie. 

Malhieux  laborde. 

Jean  Baptiste  Montigna. 

hervieux. 

Belland. 

ortes. 

Marie 

Francois  Denoyer. 

Bequete. 

Jacques  Dennis. 

hubert. 

Gille  Chemin. 


Names  under  ordinary  marks: 


Louis  Marchetaud 
Charles  Roulier 
Joseph  Denoyer 
Jacques  Laby 
Jn  Bte  Provencher 
Fr  Gervais 
Pierre  Sans  Soucie 
J.  Bte  Pety 
Antoine  Rivard 
Jacques  Noise 
Pierre  La  Croix 
Louis  Letourneau 
Pierre  Bequet 
Toussaint  Hunaud 
Toussant  Hunaud 
Pierre  Balin 
Charles  Parant 


Alexis  Rivard 
J.  Bte  Gamache 
Louis  Chancellier 
Isidore  Peltier 
Louis  Lirete 
Jh  Mainville 
Paul  Kiercereau 
Antoine  Rousset 
Pierre  Gagnon 
Fr  Thibaut 
J.  Bte  Savois 
Fr  Delin 
Fr  Bissonet 
Jh  Taillon 
Baltasar  Aillot 
Fr  Corneau 
Louis  Ride 


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The  Oath  of  Allegiance  to  Spain  207 

Louis  La  Roche  J.  Bte  Dechamp 

J.  Bte  Langoumois  Louis  Deshetre* 

Louise  Honore  Tesson  Nicolas  Boujeneau 

I  certify  that  this  is  a  true  copy  of  the  original  which  is  in 
my  hands.  At  St.  Louis,  Nov.  23,  1769. 

Signed:  "St.  Ange." 


Text: 


L'An  Mil  sept  Cent  soixante  neuf  ce  dix  neuf  novembre  nous 
louis  de  St.  Ange  de  Bellerive,  Capitaine  Commandant  La  Colonic 
espagnole  aux  Illinois,  Ceddee  par  Sa  Majeste  Tres  Chretienne  a 
a  Sa  Majesty  Catholique  en  vertu  des  ordres  a  nous  adresses  par 
son  excellence  Monseigneur  'oreilly  Commandeur  de  Benfayan 
dans  Tordre  d'alcantara  lieutenant  general  et  inspecteur  general 
des  armees  de  Sa  Majeste  Catholique  Capitaine  General  et  Gouver- 
neur  de  la  Province  de  la  Louisianne,  En  Consequence  de  Facte  de 
Possession  que  Nous  venons  de  prendre  de  la  ditte  Colonie  des 
illinois  au  Nom  de  Sa  ditte  Majeste  Catholique 

NOUS  ORDONNONS  a  tous  les  dits  sujets  de  cette  Colonie 
qui  Voudront  y  rester  sous  la  domination  de  Sa  ditte  Majeste  de 
Preter  le  Serment  de  fid61ite  qu'elle  Exige,  et  a  Tinstant  Etant  as- 
sembles en  la  Chambre  du  dit  Gouvernement  Nous  leur  avons  fait 
f aire  le  serment  de  f idelite  ainsi  qu'il  suit,  SC AVOIR : 

QU'IL  PROMETTENT  ET  JURENT  a  Dieu  et  a  Sa  Majeste 
Catholique  de  lui  etre  fidele  et  sacrifier  leur  vie  pour  son  service 
Lavertir  ou  ses  Commandants  de  tout  ce  qui  pourroit  Parvenir  a 
leur  Connoissance  au  Prejudice  de  Son  Etat,  ou  Soutient  de  Sa 
couronne  et  de  sa  Personne  et  de  vivre  sous  les  Loix  qu'il  plaira  a 
Sa  ditte  Maj-este  Catholique  de  leur  imposer  Et  a  quil  les  dits  de- 
nommes  Cy  apres  se  sont  Soumis,  et  dont  les  nomes  sont  cy  apres 
design6s  et  marques — 

LEFEBVRE  DEBRUISSAU. 

Labuxiere.  hivon 

Baron.  Jh  second 

Conde.  Rene  Kiercereau 

Dubreuil.  Dodie 

Sarpy.  Malhieux  laborde 

Aug.  Chouteau.  Jean  Baptiste  de  Montigna. 

Laville.  hervieux 


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f  rancois  Le  Page^ 

Mallard. 

Antoine? 

Laclede  Liguest. 

Pery. 

Cambas. 

Bouchier. 

Cotte 


Bellano 

ortes 

Marie 

Francois  Denoyer 

Bequete 

Jacques  Dennis 

hubert 

Gille  Chemin 


Noms  sous  marque  ordinaires 


Louis  Marchetaud 
Charles  Roulier 
Joseph  Denoyer 
Jacques  laby 
Jn  Bte  Provericher 
Fr  Gervais 
Pierre  Sans  Soucie 
J  Bte  Pety 
Antone  Rivard 
Jacques  Noise 
Pierre  La  Croix 
Louis  letourneau 
Pierre  Bequet 
Toussaint  hunaud 
Toussaint  hunaud 
Pierre  Blain 
Charles  Parant 
Louis  La  Roche 
J.  Bte  Langoumois 
Louis  Honore  Tesson 


Alexis  Rivard 
J.  Bte  Gamache 
Louis  Chancellier 
Isidore  Peltier 
Louis  Lirete 
Jh  Mainville 
Paul  Kiercereau 
Antoine  Rousset 
Pierre  Gagnon 
fr  Thibaut 
J  Bte  Savois. 
f  r  Delin 
f  r  Bissonet 
Jh  Taillon 
Baltasar  aillot 
f r  Corneau 
Louis  Ride 
J.  Bte  Dechamp 
Louis  Deshetre 
Nicolas  Boujeneau 


Pour  copie  que  je  certif ie  conf orme  a  L'original  que  est  entre 
mes  mains.    A  St.  Louis  le  23  9bre  1769. 

St  Ange. 


No.  IL 


Oath   of  Allegiance  to  the  Spanish  Government  by  the   Inhabitants  of 
Pointe  Coupee  and  "Fausse  Riviere",  Sept.  10,  1769. 

Translation : 

Under  the  Government  of  Don  Alexander  O'Reilly,  Commander 
of  Benfayen,  of  the  Order  of  Alcantara,  Lieutenant  General 
and  Inspector  General  of  the  armies  of  His  Catholic  Majesty 
Captain  General  of  the  Province  of  Louisiana. 


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The  Oath  of  Allegiance  to  Spain 


209 


We,  the  undersigned,  and  all  others  from  Pointe  Coupee  and 
False  River,  now  assembled  by  order  of  the  King  in  presence  of 
M.  Duplessis,  Knight  of  the  Royal  and  Military  Order  of  St* 
Louis,  Captain,  commanding  for  the  King  at  the  said  post  and  of 
M.  Alain,  captain  of  Militia. 

We  give  full  power  to  MM.  Allain,  George  Baron  and  other 
notables  of  this  establishment  to  take  in  our  name,  and  in  the 
usual  form,  the  oath  of  allegiance  to  His  Catholic  Majesty. 

We  promise  from  this  time  and  swear  fidelity,  zeal  and  obe- 
dience to  His  Catholic  Majesty,  recognizing  that  we  are  his  sub- 
jects and  as  such  held  to  conform  to  all  that  may  be  ordered  and 
prescribed  on  the  part  of  His  said  Majesty. 

By  so  doing  we  hope  to  become  worthy  of  his  favor  and  au- 
gust protecton  which  we  have  been  fortunate  enough  not  to  for- 
feit. 

At  Pointe  Coupee,  Sept.  10, 1769. 


X    mark  of  Jean  Cava. 

Janriche. 

X    mark  of  Vincent  Cava, 

X    mark  of  Simon  Piague. 

J,  Batis  Legros. 

Jh  Bourgeat. 

X    mark  of  Joseph  Mior. 

Mchel  Riekcr. 

P.  Jarreau. 

G.  Lamothe. 

Pierre  Guebo. 

X    mark  of  Rousseau. 

Jacques  Halluys  Derabun  Subt. 

X    mark  of  Sr  Desantel. 

J.  Porche. 

Auguste  Langlois  D'Ormaro. 

X    mark  of  Joseph  Porche. 

J.  Lafleur. 

Joseph  Patin.     - 

X    mark  of  Bte  La  Fleur. 

X    mark  of  Antoine  Patey. 

X     mark  of  Sr  Claise. 

A.  H.  Allain,  son. 

GREMILLION. 

Decouoz. 

X     mark  of  Sieur  La  Cour. 

Joseph  Turbert. 

J.  B.  Lacour. 

A.  Metede. 

X     mark  of  Jean  Toussin. 

Tanonay. 

Antoine  Bordelon. 

Meuillion. 

X     mark  of  Antoine  Poupard 

A.  Olivier. 

Jean  Stephen. 

Marieu. 

Philipe  Dagnieau. 

Benoit  Md. 

Phe  Guichard, 

Messonnie  B.  C. 

surgeon. 

sheriff  and  cryer 

Le  Doux,  son. 

Rivard  de  Rieutard 

X     mark  of  Milan  the  elder. 

King's  store. 

Francois  Mayeux. 

X     mark  of  S.  Emond. 

X     mark  of  Sr  Jean  Decuir. 

Emond,  son. 

Francois  Decuir 

Louis  Dezzerre. 

Joseph  Decuir. 

Balquet. 

Francois  Le  Geay. 

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Pepin. 

Maure. 

X    mark  of  Verdon. 

Aubin  de  Gallory. 

X     mark  of  P.  Dervus. 

P.  Carmon. 

V  pd 
Crouzes. 
Duval. 

Jean  n  t 

Surircup  Zarue 
X     mark  of  Rendon 
Pierre  Ducote. 
Pieer  Ducote. 
Joseph  Carmane. 
H.  Peyroux. 
Denis. 
G.  Olivo. 
Madir,  Surgeon  major  of  the 

King. 
X     mark  of  Sr  Estienne  major 
Allain  son,  Ofc'r  of  Militia 
X     mark  of  Pierre  Major 
X     mark  of  Jean  Major 
X     mark  of  Andre  Olivo. 
Guerem. 
S.  Armadic- 
F.  Jorlait. 
Guiot. 

X     mark  of  Pierre  Olivo. 
Mavre 
Samson. 

X     mark  of  La  Vigueur. 
Marionnau. 
Antoine  Prevot. 
X     mark  of  Sr.  Leonnard. 
X     Martin  Commagere. 
Dubertrand. 

X     mark  of  Louis  Marie 
Joseph  Collete. 
X     mark  of  J.  Himel. 
X     mark  of  La  Ville. 
X     mark  of  Louis  Destalles. 
X     mark  of  Claude  Destalles. 
X     mark  of  Michel  Lejeune. 
X     mark  of  Charles  Lejeune. 
X     mark  of  Sr  Du  Gue. 
X    mark  of  Joseph  Janisse. 


Paul  Moro. 
Martin  Moro. 
Joseph  Roy. 

Noel  R z 

Jh  Oderu. 

X     mark  of  Sr  Gaudoz. 

X     mark  of  Pierre  Romain. 

X     Joseph  Malus. 

X     mark  of  Sr  Ncolas  Lacour. 

X     mark  of  Pierre  Cuvillier. 

X     mark  of  Pierre  Morin. 

Tous  saint  Truberdean. 

X     mark  of  Augustin  Gamache. 

X     mark  of  Claude  Jommeau. 

X     mark  of  Pierre  Geoff rion. 

Mark  of  Bap.  La  Cour. 

X     Leyoy. 

X     mark  of  Smon  Le  noine. 

X     mark  of  Joseph  Geoff  rion 

Jacque  Firmain  Sere. 

X     mark  of  Re  Gallot. 

X    mark  of  Josef  Gallot 

X     mark  of  Jean  Assailly. 

X    mark  of  Francois  Moron. 

X     mark  of  Pierre  Moron. 

X     mark  of  Francois  Moron. 

X     mark  of  Pierre  Larches. 

X     mark  of  Pierre  Landremon. 

X     mark  of  Louis  Huet. 

X     mark  of  Francois  Deperata. 

X     mark  of  Fee  Rixner. 

X    mark  of  Andre  Rocheau 

X    mark  of  Joseph  Jof  rion. 

X    mark  of  Sr  Huzerian. 

X    mark  of  Jacque  Gobe 

X    mark  of  Armand  Morin. 

Jacque  Honhae. 

X     mark  of  Francois  Meru. 

X     mark  of  Perrot. 

Nicolas  Belage 

X     mark  of  Charles  Robillard. 

S.  L.  Ducrost. 

X     mark  of  Joseph  Wills. 

PUISSE. 

X     Antoine  Guashevaud. 

X     mark  of  Sr  Pernat. 

X     mark  of  Sr.  Estienne. 

X    mark  of  Estienne,  son. 


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The  Oath  of  Allegiance  to  Spain  211 

X    mark  of  Augustin  Porche.  X    mark  of  Louis  Lamy. 

X    mark  of  Pierre  Porche.  JEAN  OLIVIER. 

Martin  Pette.  X     mark  of  Martin  Sondrigue 

LEMOINE.  X     mark  of  Louis  Sondrigue. 

X    mark  of  Joseph  Ledoux.  X     mark  of  Pierre  Eneza. 

X     mark  of  Pierre  Bonhomme.  H.  Jaba,  engage  (1) 

X     Thomas  Morin  Volant.  X    mark  of  Nicolas  Prevot. 

X     Nicolas  Dorion.  X    mark  of  Joseph  Prevot. 

X    mark  of  Pierre  Le  Doux.  SERVAT. 

Pierre  Pizani.  X    mark  of  Pre  St  Onge. 

X    mark  of  Joseph  Bartelmy.  X    mark  of  L.  St  Onge. 

We,  the  undersigned  deputies  of  the  inhabitants  and  all 
others  established  at  Pointe  Coupee  and  False  River,  in  this 
province  of  Louisiana,  now  at  New  Orleans,  in  our  name  as  well 
as  in  that  of  all  those  who  are  established  in  the  said  places  and 
whose  orders  and  full  power  we  hold ; 

On  this  day,  twenty-first  of  September,  one  thousand  seven 
hundred  and  sixty-nine,  of  our  own  free  will  and  pleasure.  Swear 
to  God  to  observe  the  most  inviolable  fidelity  and  obedience  to 
His  Catholic  Majesty,  our  sole  and  legitimate  sovereign,  to  reveal, 
without  any  delay,  to  the  Governor  of  this  Province  all  that  we 
shall  know  qf  against  his  sovereign  authority  and  service,  and  to 
oppose  execution  of  same  with  all  our  strength  and  at  the  peril 
of  our  lives. 

Signed:  "George  Baron,  officer  of  militia  and  syndic." 
"Joseph  Decoux".  "Louis  Armand  Decrest" 

X  "ordinary  mark  of  Sr  Jean  Bavat,  so-called  Le  Blond" 
"X  Ordinary  mark  of  Jacques  des  Autels"  "Duplessis" 

"Duplessis" 

The  oath  of  allegiance  which  precedes  was  taken  in  the  pres- 
ence of  His  Excellency  Don  Alexander  O'Reilly,  Commander  of 
Benfayan,  of  the  Order  of  Alcantara,  Lieutenant  General  of  the 
Royal  Armies  and  Inspector  General  of  the  Infantry,  especially 
commissioned  by  His  Majesty  with  the  superior  authority  as  Gov- 
ernor and  Captain  General  of  this  city  of  New  Orleans  and  the 
province  of  Louisiana  etc.  before  us,  as  I  here  certify  in  due  form 
and  dated  as  above. 

Signed:  "Fran.  Xav.  Rodriguez 

Sno  de  la  Expedizoh  (paraphe)" 

(Apparently):  "Joseph  Fermo  (paraphe)" 


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Text: 

Sous  le  Gouvernement  de  Don  Alexander  O'Reilly,  Conimandeur 
de  Benf  ayan  dans  Lordre  d'alcantara,  Lieutenant  general  et 

inspecteur  general  des  armees  de  Sa  Majeste  Catholique, 

capitaine  general,  et  gouverneur  de  La  province  de  la  Lou- 

isiane. 

Nous  soussignez  et  tous  autres  de  la  Pte  Coupee,  et  fausse 
riviere,  actuellement  assembles  Par  ordre  du  roy,  en  presence  de 
Mr  Duplessis  chvr  de  L'ordre  royal  et  militaire  de  St.  Louis,  capi- 
taine Pr  Le  roy  au  Dt  Poste,  et  de  mr  alain  capitaine  Des  milices. 

Donnons  plein  pouvoir  a  Mrs  allain,  georges  Baron,  et  autres 
notables  de  cet  etablissement  de  preter  a  La  nlle  Orleans  en  notre 
nom,  et  dans  la  forme  ordinaire,  le  serment  de  f idelite  a  Sa  Majeste 
Catholique 

Promettons  des  apresent,  et  jurons  f  idelite,  zele,  et  obeissance 
a  Sa  Majeste  Catholique,  de  laquelle  nous  nous  reconnoissons  Les 
sujets,  et  comme  tels,  tenus  de  nous  conformer  atout  ce  qui  nous 
sera  ordonne,  et  present  de  la  part  de  Sa  Ditte  Majeste, 

Ce  Que  Faisant,  nous  esperons  nous  rendre  dignes  de  ses 
graces,  et  de  son  auguste  protection,  que  nous  avons  et  assez 
heureux  pour  ne  pas  demeriter. 

A  La  Pte  Coupee  le  10  7bre  1769 


marque  de  jean  cava 

marque  de  Vincent  Cava 

J  batis  Legros 

Marq  de  Joseph  mior 

P  Jarreau 

pierre  guebo 

Jacques  halluys  Derabun  Subt 

J  porche 

marque  Joseph  Porche 

Joseph  patin 

marque  d'antoine  Patey 

A  H  allain  fils 

Decouo2 

Joseph  turbert 

AMetede 

Tanonay 

Meuillion 

A  Olivier 

Marieu 

Benoit  Md 

Messonnie  B  C 


Glamothe 

X     marque  de  Rousseau 
X    marque  du  Sr  Desantel 
Auguste  Langlois  D'ormaro 
j  lafleur 

X     marque  de  Bte  la  f  leur 
X    marque  du  Sr  Claise 
GREMILLION 
Marque  du  Sieur  La  Cour 
J.  B.  Lacour 
JBLACOUR 

X     marque  de  Jean  Toussin 
antoine  Bordelon 
X     marque  d'Antoine  Poupard 
jean  Stephen 
philipe  dagnieau 
Phe  Guichard 
chireurgien 
Le  Doux  fils 

X     marque  de  Milan  laine 
francois  mayeux 


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huissier  audiencier 

Rivard  de  Rifeutard  magazin  du 

roy 
X     marque  de  S  Emond 
Emond  fils 
Louis  dezzerre 
Balquet 
pepin 
Maure 

X     mqe  de  Verdon 
aubin  de  Gallory 
marque  de  P  Dervus 
P  Carmon 

V  pd 
Crouzes 
Duval 

jean  n  t 

Surircup  Zarue 
X     marque  de  Rendon 
pierre  ducote 
pieer  Ducote 
Joseph  Carmane 
h  Peyroux 
Denis 
G  Olivo 
Madir  chirurgien  major 

du  Roy 
X     marq  du  Sr  Estienne  major 
Af fain  fils  Ofc'r  de  milice 
marque  de  Pierre  Major 
marque  de  Jean  Major 
X     marque  dandre  olivo 
GUEREM 
armadie 
f  jorlait 
Guiot 

X     marque  de  Pierre  Olivo 
Mavre 
Samson 

X     marque  de  la  Vigueur 
Marionnau 
antoine  prevot 
X    marque  du  Sr  Leonnard 
X    martin  Commagere 
Dubertrand 
marque  de  Louis  marie 
Joseph  CoUete 
janriche 


X    marq,  de  S  jean  Decuir 

pierre  Decuir 

Joseph  Decuir 

f  rancois  Le  Geay 

paul  MORO  - 

martin  moro 

Joseph  Roy 

NoelR.  ..z 

JH  ODERU  ? 

X  marq.  du  Sr  Gaudoz 

X     marq  de  Pierre  Romain 

X     Joseph  Malus 

X    marq.  du  Sr  Nicolas  La  Cour 

X    marq.  de  Pierre  Cuvillier 

X    marque  de  Pierre  Morin 

tous  saint  truberdean 

X  marque  d'Augustin  Gamache 

X    marque  de  Claude  Jommeau 

X     mark  de  Pierre  Geoffrion 

Marq.  de  Bap.  La  Cour 

X     Levoy 

X    marque  de  Simon  Lemoine 

X     marque  de  Guillaume  Le- 

moyne 
X     marq.  de  Joseph  Geoffrion 
jacque  firmaint  Sere 
X    mark  de  Re  Gallot 
X    marq.  de  Jean  Assailly 
X    marq.  de  Francois  moron 
X     marq.  de  Pierre  moron 
X    marq.  de  Francois  moron 
X    maq  de  Pierre  Larches 
X    marque  de  Claude  Destalles 
X    marque  de  Michel  Lejeune 
X     Marque  de  Charles  Lejeune 
X    marque  de  sr  Du  Gue 
X     marque  de  Joseph  janisse 
X    marque  augustin  Porche 
X    marque  de  Pierre  Porche 
Martin  pette 
LEMOINE 

Marque  de  Joseph  Ledoux 
X     marque     de     Pierre     Bon- 

homme 
X     Thomas  Morin  Volant 
X     Nicolas  Dorion 
X    marque  de  Pierre  Le  Doux 

Pierre  Pizani 


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X    marq  de  Simon  piague  X    marque  de  Joseph  Bartelemy 

jh  Bourgeat  X    marque  de  Charles  Robillard 

Michel  Ricker  S  L  Ducrost 

X    marque  de   Pierre   Landre-  X    marque  die  Joseph  wils 

mon  PUISSE 

X     marque  de  Louis  huet  X     Antoine  Guashevaud 

X     marque  de  francois  Depe-  X     marque  du  Sr  Pernat 

rata  X     marque  du  Sr  Estienne 

X    marque  de  Fes  rixner  X    marque  d'Estienne  fils 

X    marque  dandre  Rocheau.  X    marque  de  Louis  Lamy 

X     marque  de  Joseph  jofrion  JEAN  OLIVIER 

X    marque  de  Sr  huzerian  X    marque  de  nartin  Sondrigue 

X    marq  de  jacque  Gob6  X    marque  de  Louis  Sondrigue 

X     marq.  darmand  morin  X    marque  de  Pierre  Eneza 

X    jacque  honhae  h  jaba  engage 

X    marq  de  Francois  meru  X    marque  de  Nicolas  Prevot 

X     marq.  de  Perrot  X    marque  de  Joseph  Prevot 

Nicolas  Belage  SERVAT 

X     marq.  de  j  himel  X     marque  de  Pre  St  Onge 

X     marq  de  la  ville  X     marque  de  L  St  Onge 
X    marque  de  Louis  Destalles 

Nous  soussignes  deputes  des  habitants  et  tous  autres  etablis 
a  la  Pointe  Coupee  et  Fausse  Riviere  dans  cette  province  de  la 
Louisianne  presentement  a  la  Nile  Orleans,  tant  en  notre  nom 
qu'en  celui  de  tous  ceux  qui  sont  etablis  dans  les  dits  endroits  et 
dont  nous  avons  les  ordres  et  pleins  pouvoirs ; 

Aujourd'  hui  vingt-un  de  Septembre  Mil  Sept  Cent  Soixante- 
Neuf  de  notre  libre  volonte  et  de  plein  gre  Pretons  Serment  a 
Dieu,  de  garder  la  plus  inviolable  fidellite  et  obeissance  a  Sa  Ma- 
jeste  Catholique,  notre  unique  et  legitime  Souverain;  de  reveler 
sans  aucun  delai  au  Gouverneur  de  cette  Province  tout  ce  que 
nous  saurons  etre  contraire  a  sa  Souveraine  autorite  et  Service, 
et  de  nous  opposer  a  son  execution  de  toute  notre  force  et  aux 
perils  de  nos  vies. 

George  Baron  aufisier  demelys  Cendique 
Joseph  Decoux  Louis  Armand  Ducrest 

X    nlarque  ordinaire  de  Sr  jean  bavat,  Dt  eL  Blond 

Duplessis 

X    marque  ordinaire  de  Jacques  des  autels 

Duplessis. 

El  juramente  de  fidelidad  que  antecede  fue en  la 

presencia  de  Su  Ex  Dn  Alexandro  0  Reilly,  Commendador  de  ben- 
f  ayan,  en  la  orden  de  Alcantara,  Teniente  General  de  Los  Rs  Exer- 


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The  Oath  of  Allegiance  to  Spain  215 

citos  y  Inspector  General  de  Inf anteria,  en  cargado  por  especial 
mosion  de  S  M  del  mando  Superior  Gobierno  y  Capitan  Gen- 
eral de  Esta  Ciudad  de  la  Nueva  Orleans  y  Provincia  de  la  Lou- 
isiana &c  y  por  ante  nos,  Infraescritos  Escribanos,  Como  asi  lo 
certificamos  en  debida  forma,  y  de  ello  damos  f e  Fecho  y  Supia. 
Fran.  Xav,  Rodriguez,  (paraphe) 
Sno  de  la  Expedizon  (apparently: 

"Joseph  Fermu 

paraphe.) 


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CABILDO  ARCHIVES 

FRENCH    PERIOD 
No.  IX. 


Edited  by  Henry  P.  Dart 


Passport  to  Capt.  Latiolais  of  the  Ship  Apollo  and  Instructions  Regarding 

Cargo  to  -Mobile. 

April  23,  1748. 

The  short  document  which  follows  is  signed  "de  Noyan," 
who  was  acting  governor  in  New  Orleans,  during  Gov.  de  Vau- 
dreuil's  absence,  necessitated  by  the  panic  in  Mobile  following 
Choctaw  depredations.  The  Choctaws  who  had  so  long  been 
friendly  to  the  French  in  the  beginning  of  1748  were  divided  into 
two  factions.  The  majority  were  still  friendly  to  French  and 
the  minority  called  "Rebels"  were  English  sjonpathisers.  Mobile 
was  terrorized  by  their  frequent  raids  and  de  Vaudreuil  went 
there  to  devise  means  of  protection  and  to  organize  a  defense 
against  these  marauders.  The  Choctaw  chief  Red  Shoe  had  re- 
ceived a  medal,  a  costume  and  a  commission  from  George  II  of 
England  and  defied  the  French  in  their  settlements  and  on  the 
very  outskirts  of  New  Orleans.  At  the  German  Coast  Bouchereau 
and  Rousseau  nobly  exposed  and  sacrificed  their  lives  to  save 
others.  The  warrior  who  led  the  Choctaws  in  this  raid  was  killed 
by  his  own  brother  for  having  broken  the  promise  given  to  de 
Vaudreuil  and  Red  Shoe  was  assassinated  shortly  afterwards,  but 
peace  was  not  established  before  1750. 

The  report  of  the  date  of  the  boat's  arrival  at  Mobile  and  that 
of  its  return  to  New  Orleans  over  Louboey's  signature  gives  us  the 
correct  orthography  of  the  name  of  a  gallant  officer  who  served  in 
Louisiana  from  the  early  days  of  the  colony  until  his  death  in 
1752,  over  half  a  century,  participating  in  all  the  Indian  cam- 
paigns to  his  extreme  old  age.  ^^^^^^^  ^^  ^^^^^^^ 


Order  and  Passport  to  Sieur  Latiolais  to  Sail  With  an  Important 
Cargo    for    Mobile. 

April  23,  1748. 
We,  Lieutenant  for  the  King,  commanding  in  New  Orleans 
during  the  absence  of  M.  de  Vaudreuil,  Governor  of  Louisiana, 


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Cabildo  Archives — French  Period  217 

order  that  Sr  Latiolais,  Captain  of  the  King's  ship  "Apollo"  leave 
immediately  for  the  post  of  Mobile,  to  carry  the  effects  com- 
mitted to  his  care  by  orders  of  M.  des  Clozeaux,  Commissary  at 
said  post.  We  recommend  that  he  be  as  pronipt  as  possible  arid 
request  all  those  who  are  to  be  asked,  to  allow  him  to  pass  freely 
and  to  give  him  all  necessary  succor,  promising  to  do  the  same  on 
a  similar  occasion. 

Signed:  "Noyan". 

Arrived  at  Mobile  April  27  and  leaves  for  New  Orleans  on 
this  30th  of  the  said  month.  (1) 
At  Mobile,  April  30,  1748. 

Signed:   "Louboey". 


Original  Text. 
No.  IX. 

Ord»r  and  Passport  to  Capt.  Latiolais  of  Ship  Apollo  and  Instructions 
Regarding    Carjio   to    Mobile. 

April  23,  17 i8. 
Nous,  Lieutenant  pour  le  Roy  Commandant  a  la  Nouvelle 
Orleans  en  Labsence  de  Monsieur  de  Vaudreuil  Gouverneur  de 
la  Louisianne  II  est  Ordonne  au  Sr  Latiolais  Capitaine  de  Batteau 
du  Roy  Lapollon  de  partir  incessamment  pour  se  Rendre  au  poste 
de  la  Mobille  pour  porter  les  Ef fets  dont  il  est  charge  aux  ordres 
de  Monsr  des  Closeaux  Commissaire  au  dit  poste.  Luy  enjoignons 
de  faire  le  plus  de  diligence  qu'il  pourra  prions  tous  ceux  qui  sont 
a  prier  de  le  Laisser  Librement  passer  et  luy  donner  tous 
les  secours  dont  il  pourroit  avoir  besoin  prometant  En  faire 
autant  en  pareille  occasion 
fait  a  la  Nouvelle  Orleans  Le  23  avril  1748. 

Noyan. 

Arrive  a  la  Mobille  Iw  27  avril,  et  en  repart  pour  la  Nouvelle 
Orleans  le  30  dud.  (mois).  (1) 
A  la  Mobille  ce  30  avril  1748. 

Louboey. 

(1)  The  word  "mois"  omitted  in  text  and  supplied. 


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RECORDS  OF  THE  SUPERIOR  COUNCIL  OF  LOUISIANA 

No,  XL 


Motion  For  Sale  of  Property.  May  17,  1727.  Attorney  General 
Fleuriau  reviews  the  affairs  of  late  Gaumy  alias  La 
Riviere,  who  died  at  Natchez  while  on  business  for 
the  Company  (contract  of  timber),  and  left  a  partly 
paid  house  at  N.  O.,  together  with  two  negroes  (one 
of  them  still  at  Natchez).  Let  property  be  sold  in 
settlement  of  debts  and  for  benefit  of  surviving  min- 
or children. 

Council  orders  appointment  of  a  guardian,  and 
sale. 

Hire  shall  be  paid  for  slave  at  Natchez. 

Filed  No.  254. 

Decisions  in  Sundry  Suits.  May  17,  1727 

1.  DeChavannes  vs.  Perault.  Mr.  Perault,  both  on 
his  own  account  and  as  security  for  Mr.  Perry, 
shall  pay  given  claim,  437  francs.  They  may  re- 
cover as  they  please  in  claims  of  theirs. 

Costs  on  defendants. 

2.  Michel  Roger  vs.  Rossard.  -  (Apparently  com- 
promised; passage  torn).     Costs  divided. 

3.  Canceled. 

4.  Vincent  vs.  St.  Leger.  Deferred.  Costs  re- 
served. 

Filed  No.  253. 

Petition  of  Recovery.    May  20, 1727.  Darby  claims  72  francs  from 
one  Thomelin  (joiner),  due  on  his  note  of  past  Febru- 
ary 5. 
Action  granted. 

Letter  of  Terrisse  de  Cernan..  May  21, 1727.  Name  of  "Monsieur" 
to  whom  letter  is  addressed,    does    not   appear   In- 


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Records  of  the  Superior  Council  of  Louisiana  219 

scribed.  Reference  to  strange  inaction  of  Mr.  De 
Beauharrais  on  the  side  of  Canada,  and  of  Mr.  Per- 
rier  here  in  the  wake  of  the  death  of  Mr.  De  Melique 
and  of  several  Frenchmen  with  him.  That  occurrence 
has  decided  the  writer's  movements  in  favor  of  Illi- 
nois, rather  than  "des  Alibamous."  Two  years  "in  the 
capital"  have  greatly  reduced  the  writer's  funds. 

Petition  For  Assisant  Accountant.  May  23,  1727.  De  Mandeville 
has  been  asked  to  take  charge  of  the  grants  Ste.  Cath- 
erine and  Chaouachats.  The  labor  of  accounting  is 
too  great  for  his  unaided  facilities;  let  a  competent 
assistant  be  allowed  him,  at  the  proprietor's  expense. 
Assistant  will  also  travel,  as  required. 

May  29.  Note  referring  to  advise  with  Mr.  de 
Kolly. 

Decisions  in  Civil  Suits.  May  29. 

1.  De  La  I^ire  vs.  Rossard.  Plaintiff  will  be  gov- 
erned by  settlement  of  Ceard  estate.  Costs  de- 
vided. 

2.  Darby  vs.  Thomelin.    Claim   allowed.     Costs    on 

T. 

Filed  No.  255. 

Promissory  Note.    June  4.    "Undermarked"  Dancy  promises  to 
pay  Rousaux  alias  La  Flamme,  128  francs,  8  sous 
Value  received. 
Witnesses : 

L  D'Allenne,  Si  Say  Receipted  by  Senet,  August 
4,  1727,  for  sum  of  "sequante"  (50?)  francs  on  said 
pileist  (billet,  note.) . 

Promissory  Note.  June  4.  L  D'Allenne  acknowledges  and  con- 
fesses that  he  owes,  and  promises  to  pay,  Louis  Rou- 
sauxy  alias  La  Flamme,  the  sum  of  154  francs,  6  sous. 
Value  received  in  provisions  and  expenses  at  his 
house. 

Endorsed  receipt  for  "sequante"  (50?)  francs  on 
said  pileist  (note),  by  Senet.  August  4,  1727. 


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220  The  Louisiana  Historical  Qicarterly 

Promissory  Note.  June  4,  1727.  Yve  Leonn  promises  to  pay 
Louis  Rosaux,  alias  La  Flamme,  the  sum  of  112 
francs,  8  sous.  Value  received  in  provisions  and  ex- 
penses at  his  house.  Endorsed  receipt  for  60  francs  on 
said  pileist  (billet,  note)  by  Senet^  August  4,  1727. 

Sale  Announced.  June  7.  Balingant,  alias  St.  Quentin,  proper- 
ty will  be  offered  to  the  highest  bidder  on  June  11. 
Terms,  cash.     Torn  and  faded. 

Sale  Announced.  June  7,  1727.  Property  of  Nicolas  Gomy, 
alias  La  Riviere,  will  be  offered  to  highest  bidder, 
cash  terms,  on  June  11. 

Stained. 

Petition  of  Recovery.  June  7,  1727.  Raymond,  settler  aux  Ton- 
icas,  furnished  the  Late  La  Riviere  some  provisions 
for  his  raft  workmen,  and  moves  to  collect  promptly. 
He  has  lost  a  month's  time  in  the  growing  season, 
by  delayed  payment,  and  would  now  return  to  his 
crops. 

Attorney  General  grants  him  preference  on  La  Ri- 
viere assets,  after  Company's  claims. 

July  10.     Subjoined  receipts  for  2671/^  francs. 

Petition  of  Recovery.  June  8,  1727.  Claude  Herpin,  attorney 
for  former  Councillor  Perault,  shows  that  Mr.  P.  fur- 
nished former  director  of  DuBuisspn  grant  (Mr.  de 
Verteuil)  a  cash  advance  of  988  francs,  2  sous,  in 
copper.  Since  Mr.  Bonnaud  is  now  director,  let  him 
be  cited. 

Approved,  and  notice  served,  June  19. 

Report  of  Last  Wishes.  June  9,  1727.  Desarboy  declares  that 
one  Richard,  sailor  who  guarded  the  powder  maga- 
zine, charged  D,  at  the  hour  of  Richard's  death,  to 
see  to  payment  of  his  dues  from  the  Company  to  the 
Reverand  Capuchin  Fathers  in  behalf  of  prayers  for 
the  repose  of  his  soul. 


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Records  of  the  Superior  Council  of  Louisiana  221 

*  Decisions  Between  Caron  and  Lagoublaye  and  Dumas  Lempileur, 

Party  Distraining.  June  9,  1727.  Lempileur  non- 
suited in  his  opposition.  Lagoublaye  shall  pay  Caron 
according  to  terms  of  Contract,  what  remains  after 
payment  of  Company,  plus  costs. 

Filed  No.  256. 

Petition  of  Recovery. .  June  14, 1727.  Francois  Brunet,  edgetool- 
maker  in  Company's  service,  claims  1397  francs  from 
Sieur  Tixerant,  for  two  years'  wages. 

Action  allowed. 

Letter  of  Merveilleux  to  Gaulas.  Dictated  and  Unpunctv^ted. 
June  18,  1727.  Acknowledging  a  letter  of  June  14, 
and  rambling  over  sundry  matters  of  everyday  con- 
cern between  M.  and  G.  Send  some  corn  by  dugout, 
if  only  a  barrell  or  two  at  each  trip.  Not  one  grain 
of  corn  with  M.  for  homing  liquor,  which  has  been 
prescribed  for  his  sole  drink.     He  must  even  feed  a 

*  negro  and  a  savage   on    French   bread    at   present. 
Urges  G.  to  pwnish  lazy  Alexis  by  lashing    till    blood 

I  flows.     Look  after  the  few  garden  onions.     Send  some 

!  prunes;  order  peaches  preserved  by  Madame  Soelo. 

I  Also  send  some  dried  peas,  garlic  and  shallots,  and 

four  dried  tongues. 

Summons  to  Satisfy  Claim.    June  28,  1727.     At  the  instance  of 
Mr.  Bonnaud,  attorney  for  St.  Martin  de  Morge,  Sher- 
'  iff  Vincent  notifies  Mr.  DeVerteuil  to  appear  on  Satur- 

day next  and  see  himself  sentenced  to  pay  Mr.  Bon- 
naud the  sum  cf  3273  francs  in  gold  and  silver  specie, 
due  on  a  letter  c(  exchange  that  should  have  been  paid 
in  France. 

Petition  To  Sell  Vacant  Property.  June  30, 1727.Mr.  Rossard,  at- 
torney, shows  the  good  economy  of  promptly  selling 
the  effects  of  the  late  Mr.  Rouzeau  and  asks  leave  to 
proceed  in  accord  with  the  usual  forms  of  law. 

Granted. 


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222  The  Louisiana  Historical  Quarterly 

Summons  To  Attend  Hearing.  July  2, 1727.  Sheriff  Vincent,  at 
the  instance  of  Mr.  Harpin,  attorney  for  Mr.  Perault, 
notifies  Mr.  Bonnaud,  acting  director  of  DuBuisson 
grant,  to  appear  on  Saturday  at  8  A.  M. 

Decision  Between  Brunei  and  Tixerant.  July  5,  1727.  T.,  in  de- 
fault, and  bound  to  pay  B.'s  claim  of  1397  francs.  T. 
will  either  complete  the  two  remaining  months  of  hia 
arrangement  with  B.,  or  their  equivalent  account  will 
be  deducted  from  said  claim. 

B.  is  notified  of  seizure  in  the   hands   of   Cashier 
Duval. 

Duplicated. 

Decision  in  Civil  Suits.  July  5,  1727. 

1.  Harpin  vs.  Bonnaud.  Judgement  withheld  until 
Mr.  DeVerteuil  produces  his  power  of  attorney  as 
bestowed  by  his  associates. 

2.  See  27^^^ 
Filed  No.  257. 

Lower  half  torn  off.         • 

Promissory  Note.  July  7,  1727.  L.  Lartaud  promises  to  pay  to 
the  order  of  Mr.  Sennet  the  sum  of  80  francs  in  three 
months. 

Value  received. 

Will  of  Francois  Deserboy.     July  13,  1727     He  leaves  100  francs 

to  the  Capuchin  Fathers  for  his  burial ;  50 

for  Masses ;  50  francs  to  the  poor.  His  few  personal 
effects  are  bequeathed  to  Mr.  Larou's  negress,  for  her 
faithful  care  of  him  while  sick.  The  Capuchin  Fath- 
ers will  please  to  hand  his  death  certificate  to  Mr.  La- 
rou,  for  transmission  to  D.'s  family  in  Brittany.  Casn 
bequests  payable  from  his  wage  account  Surplus,  if 
any  to  said  negress. 

Addressed  to  R.  P.  Theodore,  "very  worthy  priest" 
and  Apostolic  Vicar. 

Faded  almost  extinct. 


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Records  of  the  Superior  Council  of  Louisiana  223 

Memorandum  of  Medical  Attendance.  July  15,  1727  To  wit,  of 
"drugs,  bleedings  and  visits,"  in  behalf  of  "several  ne- 
groes or  negresses  on  the  plantation  of  late  Mr.  Pay- 
on."  Total  bill  80  francs.  Doses  include  "hipecac" 
and  astringent  opiates. 

Receipt  of  foregoing  bill  to  Mr.  Dagoublets  (man- 
ager), same  date,  by  Alexandre. 

Complaint  Against  False  Accusation.  July  16,  1727.  Estienne 
Bouet,  joiner,  has  been  charged  by  Sieur  and  Dame  La- 
goublaye  with  robbing  them  of  a  flask  of  brandy,  a 
jacket  with  gold  buttons,  a  bundle  of  linen,  and  other 
articles;  but  no  such  goods  were  found  at  his  house. 
He  denies  the  charge,  and  asks  that  Mr.  and  Madame 
Lagoublaye  be  held  liable  to  fine  -of  500  francs  for 
alms,  together  with  Court  costs. 

Redress  Demanded.  July  16,  1727.  Etienne  Bouet  repeats  his 
complaint,  offers  to  be  committed  to  jail,  and  now  asks 
that  Madame  Lagoublaye  be  fined  2000  francs;  1000 
for  hospital,  lOOOfor  the  deserving  poor. 

Notice  served  to  Madame  Lagoublaye  to  appear  on 
Saturday  next,  at  8  A.  M. 

Will  Filed  of  Sieur  Desherbois.  July  19,  1727.  Formality  of 
signing  and  filing  with  reference  to  copies  when  re- 
quired. Envelope  was  addressed  to  R.  P.  Theodore, 
Vicar  Apostolic  "very  worthy  priest  resident  at  New 
Orleans." 

Contents  not  here  indicated. 

Proceedings  signed  by  Delachaise,  Brusl§,  Desurlns, 
Dauseville  and  Fleriau. 

Filed  No.  259.      * 

Decisions  in  Sundry  Suits.  July  19,  1727. 

1.  St.  Amant  vs.  DeMerveilleux. 
Compromised. 

Costs  divided. 

2.  Bouet  vs.  Lagoublaye  (Sieur  and  Dame). 
Further  in  process. 

Costs  reserved. 


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224  The  Louisiana  Historical  Qimrterly 

3.     Dame  Peingault  vs.  Sarazin. 

Judegment  for  plaintiff,  S.,  in  default. 
Filed  No.  260. 

Report  of  Runaway  Negro.  July  20,  1727,  St.  Catherine.  Un- 
dersigned Longraye  certifies  that  on  July  17  about  10 
P.  M.  there  came  to  the  St.  Catherine  grant  a  negro 
belonging  to  Mr.  de  Merveilleux,  Choucoura  by  name, 
two  days  marooned,  who  was  then  arrested  and  put  in 
irons. 

His  owners'  deputy,  Mr.  Gaulaz,  took  him  away  on 
the  morrow. 

Stained  and  faded. 

Memorandum  of  Sale.  July  22,  1727.  Alain  Dugu6  acknowl- 
edges having  sold  to  Mr.  Durivag  two  cows  and  a  bull ; 
the  cows  in  a  state  of  expectancy  which  vendor  is  will- 
ing to  guarantee.  Terms,  700  francs;  591  being  re- 
ceived, and  the  residue,  109  francs,  being  payable  when 
buyer  takes  possession. 

Witnessed  by  Francois  Thomas  and  Pierre  Jean- 
net. 

Notice  of  Seizure.  July  24,  1727.  At  the  instance  of  Francois 
Brunet,  edge-tool-maker.  Sheriff  Vincent  seizes  Cash- 
ier Duval  of  all  funds  owing  to  Mr.  Tixerant,  so  as  to 
satisfy  claim  of  1397  francs  due  to  F.  B. 

Petition  for  Separation.  July  31, 1727.  Marie  Magdelaine  Man- 
gon  de  La  Tour  tells  a  tale  of  cruelty  and  petty  ty- 
ranny on  the  part  of  her  husband,  St.  Malo,  and  re- 
quests either  transient  or  permanent  separation  from 
him,  with  board  allowance.  Action  approved,  and  no- 
tice served  to  St.  Malo. 

Petition  to  Recovery  Attached  Property.  August  1,  1727.  Mr. 
Rossard  shows  that  Mr.  de  Noyan,  on  behalf  of  Mon- 
sieur de  Bienville,  was  permitted  to  take  possession 
of  some  slaves  and  cattle  of  Bordier  estate,  until  It 
were  learned  whether  the  letters  of  exchange  had  been 


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Records  of  the  Superior  Council  of  Louisiana  225 

paid  or  not.  The  presumption  is  that  de  B.  recovered 
his  claim  in  France ;  but  anyhow,  Mr.  de  Noyan  rend- 
ered an  account  of  what  he  took  in  hand.  This  prop- 
erty should  now  be  returned  and  sold  in  settlement  of 
Bordier  estate. 

Notice  served   to  Mr.  de  Noyan. 

Petition  of  Recovery.    August  2, 1727.     Pouyadon  de  la  Tour  sold . 
a  negress  to  Mr.  Bourbeau  for  1600  francs,  and  re- 
ceived 1100  francs,  but  is  continually  put  off  with  the 
residue,  500  francs.     Let  B.  be  cited. 
Approved,  and  notice  served. 

Memorandum  of  Account.  August  8,  1727.  Statement  of  trans- 
actions between  St.  Pierre  de  St.  Julien  and  Ste.  Relne 
grant. 

Total,  612  francs. 

Balance  debit  against  St.  Julien,  382  francs. 

Signed :  J.  B.  Kolly,  St.  Julien. 

Receipted  by  Mr.  Kolly,  March  10, 1728. 

Decisions  in  Sundry  Suits.  August  9,  1727. 

1.      Marie  Magdelaine  Mangon  vs.  St.  Malo.  Husband 
is  willing  to  behave  becomingly  and  would  avoid 
disgrace.     His  wife  shall  return  to  him.     Costs 
divided, 
i. 

Costs    dl- 

Settled    by 


Petition  of  Recovery.  August  14,  1727.  Antoine  de  Joye  de  La 
Goublaye,  having  married  Francoise  Martin,  widow  of 
Jean  Hugot,  formerly  tenant  of  Pailhox  plantation, 
seeks  to  recover  480  francs  on  a  house  which  he  built 
on  said  property;  also,  130  francs  which  he  paid  for 
medical  sundries,  or  total  580  francs. 

Order  referred  to  Mr.  Perrier,  Commander  Gen- 
eral. 


3. 

Herpin    vs.    Duval.     Compromised, 

vided. 

4. 

Brunet  vs.    Duval    and    Tixerand. 

SCRAWL. 

Filed  No.  261. 

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226  The  Louisiana  Historical  Qvxirterly 

Promissory  Note.  August  21,  1727.  Bourbeau  promises  to  pay- 
Mr.  Amiot  Dausseville  the  sum  of  380  francs  which  he 
lent  in  cash  to  pay  for  negress  and  her  baby  boy,  ob- 
tained from  Mr.  Pouydan.  Date  when  due,  October 
10,  1727.     Receipted  by  D'Auseville,  Dec.  2,  1727. 

Certificate  of  Wage  Account.  August  28,  1727.  J.  B.  Faucon 
Dumanoir  certifies  that  Francois  Brunet,  edge-tool- 
maker,  is  entitled  to  net  sum  of  338  francs,  17  sous,  for 
outstanding  wages  while  he  worked  at  Ste.  Catherine 
grant. 

Decisions  in  Sundry  Suits.  August  30,  1727. 

1.  Quenot  vs.  J.  B.  Massy. 

Referred  to  Mr.  Brusle. 

2.  La  Goublaye  vs.  Perier. 

Claim  allowed.     Provisos  follow  by  the  act  of 
SCRAWL. 

3.  Veuve  Perigault  vs.  Roquet. 

Referred  to  Mr.  Brusle. 

4.  Pouyadon  de  La  Tour  vs.  Senet  (for  Bourbeau). 

B.  shall  pay  net  residue  claim,  400  francs,  on 
previous  residue  of  500  francs. 
Costs  divided. 
Filed  No.  263. 

Copy  of  Testimony  on  Cruelty  to  a  Slave.  Sept.  2,  1727.  Under- 
signed, F.  W.  De  Knepper,  notary  at  Natchez,  reports 
the  evidence  received  in  the  house  of  R.  P.  Philibert, 
priest  at  Natchez,  concerning  the  inhuman  punish- 
ment of  a  negro  belonging  to  Mr.  Merveilleux,  and  sup- 
posed to  have  been  maimed  by  Mr.  Gaullas.  Case  of 
aggravated  violence  where  vindictive  anger  gives  free 
reign  to  its  momentary  frenzy. 

Report  certified  by  Major  Cazeneuve  and  R.  P. 
Philibert. 

Edges  torn. 

Petition  of  Recovery.  Sept  2,  1727.  Michel  Bagory,  alias  Du- 
elos,  formerly  carpenter  on  Ste.  Catherine  grant, 
claims  an  unsettled  wage  account  of  2397  francs  and 


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Records  of  the  Superior  Council  of  Louisiana  227 

(contingently),  a  still  pending  letter  of  exchange  on 
the  same  account. 

Action  allowed,  and  notice  served  to  Mr.  de  Mande- 
ville,  director  in  charge. 

Copy  of  Petition  and  Attached  Memorandum.  Sept.  2,  1727.  Re- 
peating request  of  preceding  document,  and  adding  a 
statement  of  Bagory's  account  with  Ste.  Catherine 
grant,  dating  since  March  16,  1725. 

Surgeon's  Report  Natchez,  Sept.  4,  1727.  Lasonde,  surgeon  at 
Naquechez,  certifies  that  he  was  called  to  attend  a 
negro  belonging  to  Mr.  Merveilleux,  and  found  both 
hands  of  the  negro  mutilated  (by  gangerine,  appar- 
ently). Two  fingers  had  dropped  from  his  right 
hand ;  two  finger  tips  from  his  left  hand,  in  sequal  to 
strangulation  by  tight  cords. 

Decision  in  Two  Sints. .  Sept.  6,  1727. 

1.  Dame  Perigault  vs.  Roquet. 

Quashed,  save  that  plaintiff  may  have  recourse 
to  SCRAWL. 
Costs  divided. 

2.  Michel  and  Attorney  General  vs.  Denizens  of  Mo- 
bile. 

Jumble  will  jumble  Jumble,  and  60  francs  go 
to  the  Hospital. 
Filed  No.  264. 

Petition  to  Continue  as  Notary,  Natchez,  Sept.  9,  1727.  While 
transmitting  the  evidence  on  a  maimed  slave  of  Mr. 
Merveilleux's,  Acting  Notary  F.  W.  De  Knepper  asks 
to  be  retained  in  his  present  office  as  recorder  and  no- 
tary; especially,  too,  because  he  is  a  licensed  lawyer, 
and  has  already  tendered  his  oath  in  presence  of  R. 
P.  Philibert,  Monsieur  de  Merveilleux  and  Mr.  Cassen- 
euve. 

Petition  of  Recovery.  Sept.  6,  1727.  Claude  Herpin  claims  57 
francs  and  15  sous  from  Mr.  Dreux,  due  on  a  trans- 
f erred  note. 

Action  forward. 


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228  The  Louisiana  Historical  Quarterly 

Sale  of  La  Riviere  Property.  Sept.  17,  1727.  After  several  auc- 
tions below  desired  results,  the  two  given  lots,  house 
and  poultry  house  (in  rue  Bourbon),  are  now  awarded 
to  Jof f re,  alias  La  Liberte,  for  520  francs ;  terms,  cash 
and  costs  of  sale. 

Petition  to  Recover  Fees.    Sept.  18,    1727.    Recorder    Rossard 
moves  for  citation  of  Mr.  DeVerteuil,  who  owes  him 
122  1-2  francs  in  fees. 
Action  allowed. 
Torn  and  crumpled. 

Memorandum  of  Recorder's  Fees.  Sept  18,  1727.  Mr.  Rossard 
submits  a  statement  of  his  dues  from  Mr.  DeVerteuil, 
dating  since  February  22,  1725. 

Net  account,  122  1-2  francs. 

Torn. 

Remonstrance  of  Court  Fees.  Sept  19, 1727.  Mr.  DeVerteuil  ob- 
jects that  some  of  the  charges  in  Mr.  Rossard's  ac- 
count, legally  devolve  on  the  Attorney  General,  pro- 
sector in  DeV.'s  libel  suit.  And  the  other  items  now 
that  Mr.  DeV.  is  no  longer  director  of  (DuBuisson) 
grant,  are  the  business  of  new  manager. 

Let  Mr.  R.  be  nonsuited  and  DeV.  discharged. 

No  note  by  Court. 

Report  of  Evidence.  Sept.  20,  1727.  Natchez.  As  favoring  Mr. 
GauUas,  Madame  Lambermond,  settler  at  Natchez,  de- 
clares that  she  heard  a  negro  at  Mr.  Merveilleux's  pro- 
voke Mr.  GauUas  with  abusive  language,  some  in- 
stances of  which  she  repeats. 

Receipt.     Sept.  20,  1727.     Chaperon  has  received  from  Mr.  de 
St.  Julien  the  sum  of  20  francs  on  account. 
Witnessed  by  Barson  de  la  Periere. 

Testimony  in  favor  of  Mr.  Gola  (Goulas).  Natchez,  Sept,  21, 
1727.  R.  P.  Philibert  certifies  that  Mr.  Gola  showed 
entire  diligence  as  manager  in  absence  of  Mr.  de  Mer- 


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Records  of  the  Superior  Council  of  Louisiana  229 

veilleux,  working  from  morning  till  evening  during  ex- 
treme heat,  and  neglecting  no  part  of  his  service. 

Testimony  for  Mr.  Gaullas.  Natchez,  Sept.  21,  1727.  Fredric, 
Surgeon  Major  at  Natchez,  certifies  to  setting  a  dis- 
located shoulder  for  Mr.  GauUas;  the  dislocation  be- 
ing caused  by  strain  of  loading  tobacco  for  Mr.  Mer- 
veilleux.  For  want  of  subsequent  care,  the  shouldei 
became  dislocated  again. 

Testimony  for  Mr.  Gaullas.  Sept.  21,  1727,  Natchez.  Jean  Sor- 
tier,  alias  Dauphine,  soldier  at  Natchez,  certifies  thai 
Mr.  Merveilleux  tried  to  induce  him  to  testify  that  Mr. 
Gaullas  had  given  him  tobacco  wrapped  in  linen,  for 
carrying  away  by  night  to  Jean's  quarters.  Even 
threatened  Jean  with  irons. 

Petition  to  Recover  Loss  of  Slave..  Sept.  24,  1727.  Captain  de 
Merveilleux,  commander  at  Natchez,  had  to  leave  his 
post,  1  May  in  order  to  obtain  medical  treatment  ai 
N.  0.  He  strictly  enjoined  his  substitute  Gaulas  to 
commit  all  discipline  of  unruly  slaves  to  Mr.  de  Caze- 
neuve,  and  not  to  punish  them  himself :  "not  knowing 
him  to  be  apt  and  fit  in  this  matter."  Contrary  to  this 
injunction,  Gaulas  ruined  one  of  the  most  valuable  ne- 
groes by  so  strangulating  his  wrists  that  mortification 
of  both  hands  ensued,  with  loss  of  three  fingers  on 
right  hand,  two  on  left.  Hands  were  bound  five  hours 
while  more  than  600  rawhide  lashes  were  inflicted. 
Gaulas  has  been  trying  to  evade  restitution  by  divert- 
iijg  his  tobacco,  and  some  of  de  M.'s  from  the  premises 
Redress  besought. 

Action  allowed,  subject  to  a  month's  margin  for 
distance. 

Petition  of  Recovery.     Sept.  25,  1727.     Michel  Brosset,  surgeon, 
claims  465  f rones  from  estate  of  late  Duval  Chevreuil 
due  on  two  notes,  and  a  further  item  of  32  francs 
*    (medical  bill).     Let  Mr.  Rossard,  attorney,  be  cited. 
Notice  served. 


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230  The  Louisiana  Historical  Quarterly 

Petition  of  Recovery.  Sept.  27,  1727.  The  noble  Chevalier  Es- 
tienne  de  Benat  claims  of  St.  Julien,  officer,  32  bar- 
rels of  rice,  13  barrels  of  corn,  80  francs  cash,  shoes 
and  other  articles,  as  shown  by  his  note  of  29  October, 
1726 ;  together  with  other  two  barrels  of  rice,  a  quar- 
ter of  Apalachee  beans,  four  quarters  of  sweet  pota- 
toes and  14  francs  cash. 
Action  allowed. 

Petition  to  Confirm  Arbitration.  Oct.  1,  1727.  Noel  Busson 
moves  for  citation  of  Mr.  Jean  Baptiste  Faucon  Du- 
manoir,  that  he  may  note  the  ratification  of  arbitra- 
tion verdict  rendered  by  Messrs.  Massy  and  Duval 
on  July  1. 

Approved  and  notice  served. 

Petition  of  Recovery.  Oct.  2,  1727.  Captain  Dutisn6,  creditor 
of  the  late  Duval  Chevreuil  to  the  sum  of  201  francs, 
and  preferred  creditor  to  deceased's  estate,  remon- 
strates that  Mr.  Rossard  slights  this  preference  by 
paying  other  claims,  not  prefered.  Let  Mr.  R.  be  or- 
dered to  pay  Captain  D. 

Action  forward. 

Duplicated. 

Decisions  in  Sundry  Suits.  Oct.  4,  1727. 

1.  De  Benat  vs.  St.  Julien. 

Referred  to  Mr.  Fleuriau. 

2.  Dutisne  vs.  Rossard. 

Council  consigns  the  case  to  SCRAWL. 

3.  Noel  Busson  vs.  Dumanoir.  • 

Arbitration  sentence  to  be  carried  out. 
Filled  No.  267. 

Apprenticed  Slave.  Oct.  5,  1727.  Laurent  Chevirty,  alias  Vi- 
try,  locksmith,  agrees  to  teach  his  trade  for  three  years 
to  a  slave  apprentice,  property  of  the  Company.  Terms, 
400  francs  when  contract  is  filed  and  approved. 
Item,  on  arrival  of  next  slave  ship,  another  liegro  will 
be  intrusted  to  Mr.  Vitry  for  same  purpose,  but  contin- 


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Records  of  the  Superior  Council  of  Louisiana  231 

gently  on  Vitry's  own  account,  rated  at  1000  francs. 
However,  if  second  negro  proves  better  skilled  than 
the  first,  Company  may   claim  the  second  slave. 

Petition  of  Recovery  Against  La  Riviere  Estate.  Oct.  14,  1727. 
Mr.  de  Tronquidy,  Captain  of  La  Loire,  sold  to  late 
La  Riviere  two  lots,  a  house  and  adjuncts  at  N.  O.  for 
1000  francs,  payable  by  instalments,  on  which  600 
francs  are  still  standing. 

Mr.  Droy,  guardian  of  minor  children,  disclaims  this 
debt  because  the  buyer  states  in  his  will  that  he  ow<ss 
only  400  francs  to  Mr.  deT.  Let  receipts  be  pro- 
duced and  the  full  claim  discharged. 

Notice  served  to  Mr.  Droy. 

Duplicated. 

Petition  of  Recovery.  Oct.  14,  1727.  Jean  Bareau,  having  mar- 
ried Madame  Veuve  Lafontaine,  seeks  to  collect  on 
her  behalf  the  sum  of  100  francs  due  on  a  note  which 
is  payable  by  one  Aufrere,  who  says  that  he  paid  it. 
Let  him  be  cited. 
Action  granted. 

Decisions  in  Sundry  Suits.  Oct  18,  1727. 

1.  Bareau  vs.  Aufrere. 

A.      to  pay  100  francs  and  costs. 

2.  Jacques  Vincent  vs.  St.  Leger. 

Deferred. 

3.  DeTronquidy  vs.  LeRoy  (Droy).     Defendant  to 
pay  stated  residue,  600  francs,  and  costs. 

Filed  No.  268. 

Petition  of  Counterclaims.  Oct.  21,  1727.  Pierre  Gaulaz,  some- 
time Swiss  officer,  and  former  steward  of  Mr.  de 
Merveilleux  at  Natchez,  declares  that  he  had  instruc- 
tion to  punish  slaves,  and  that  the  negro  Choucoura 
lost  his  fingers  by  thrusting  them  into  boiling  water 
after  wounding  his  hands  by  struggling  while  bound. 
Witnesses  against  Gaulaz  were  untruthful,  and  the 
really  injured  party  is  Gaulaz,  now  crippled  for  life 


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232  The  Louisiana  Historical  Quarterly 

by  his  dislocated  collarbone.  De  M.  has  also  extort- 
ed of  him  a  note  of  200  piastres,  to  pay  for  slave. 
Damages  and  compensation  besought. 

Notice  to  Mr.  De  M.,  dated  January  20,  1728. 

Remonstrance  Filed.  Oct.  21,  1727.  Pierre  Gaulaz  lodges  com- 
plaint that  when  he  was  preparing  to  leave  Natchez 
for  N.  O.,  he  had  to  buy  his  liberty  of  Mr.  de  Mer- 
veilleux  by  tendering  a  note  for  200  piastres,  rated  at 
7  1-2  francs  to  the  piastre.  He  protests  that  this  note 
is  void. 

Surgeons'  Certificate.  N.  0.,  Oct.  22.  Hospital  Surgeons  Alex* 
andre  and  Pouyadon  De  La  Tour  certify  that  they 
visited  (former)  Lieutenant  Gaulaz,  and  found  his 
collarbone  fractured,  and  so  badly  set  that  correct 
setting  is  now  out  of  question,  owing  to  stiffening 
process.  Freedom  of  his  arm  movements  is  largely 
impaired. 

Petition  for  Settlement  of  Account.  October  21,  1727.  Mr.  de  Man- 
deville,  attorney  for  parties  interested  in  Ste.  Cath- 
erine grant,  asks  that  Mr.  Dumanoir  be  ordered  to 
turn  in  the  account  of  his  management ;  the  goods  that 
he  has  with  him ;  the  value  of  goods  sold  and  variation 
since  removal  of  seals ;  the  negress  and  the  Indian  at 
present  in  his  charge. 

Signed:  Larou,  on  behalf  of  Mr.  De  Mandeville. 

Indian  in  question  is  the  plantation  hunter,  and  a 
white  hunter  must  be  hired  while  the  Indian  is  ab- 
sent. 

Edges  worn. 

Petition  of  Recovery.  Nov.  4,  1727.  Pierre  Pitard,  alias  La 
France,  holds  a  note  of  Mr.  De  Benat's  for  1050 
francs,  whereof  500  francs  are  payable  to  La  France 
and  residue  to  heirs  of  late  Mr.  Rostot  Let  Mr. 
DeB.  be  cited.     Action  allowed. 

Petition  to  Recover  Cattle.  Nov.  4,  1727.  Yves  Keret,  alias 
Durivage,  bought  of  one  Allain  Dugu6  two  cows  and 


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Records  of  the  Superior  Council  of  Louisiana  233 

a  bull  for  700  francs  and  paid  591  francs.  Hence 
only  9  francs  remain  owing.  Meanwhile  the  cattle 
are  with  one  St.  Joseph;  let  him  be  cited  to  release 
them. 

Action  allowed,  and  notice  served  to  St.  Joseph,  au 
Bayou. 

Money  Order.    Nov.  4,  1727.     Alexandre  requests  Mr.  Durivage 

to  retain  the  sum  of  100  francs,  which  AUain  owes 

Alexandre,  on  account  of    what  Alexandre  owes  Mr. 

D. ;  "thereby  obliging  his  very  humble  and  very  obe- 

.  dient  servant." 

Promissory  Note.  Nov.  7,  1727.  Caritbn  owes  Monsieur  Le- 
Cape  the  sum  of  26  francs,  value  received,  and  prom- 
ises to  pay  on  the  "twentieth  of  this  month."  This 
7  November,  1727. 

Decisions  in  Sundry  Suits.  November  8,  1727. 

1.  La  France  vs.  De  Benat.  ♦ 

De  Benat  to  pay  plaintiff  500  francs,  and  550 
francs  to  Company's  treasury  in  account  with 
late  Rotot.     Further  provisos  detailed. 

Costs  divided. 

2.  DuRivage  vs.  St.  Joseph.  St.  Joseph  to  release 
the  cattle  to  DuRivage  under  provisos  defined  by 
SCRAWL. 

Costs  divided. 

3.  De  Mandeville  vs.  Dumanoir.  Provisional  ad- 
justment. 

Costs  reserved. 

4.  Lemotte  vs.  Dupuy. 

Deferred. 
Costs  reserved. 
Filed  No.  269. 

Petition  For  Direct  Title.  November  13,  1727.  Pierre  Fillart, 
former  mariner,  seeing  that  the  Company  might  not 
care  to  grant  land  to  an  active  seaman,  engaged  one 
Bureau  to  apply  for  six  acres,  and  backed  him  with 


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234  The  Louisiana  Historical  Quarterly 

capital.  Since  Fillart's  return  from  France  he  has  also 
paid  debts  contracted  by  B.  But  B.  is  drowned,  and  ap- 
plication went  astray.  Let  F.  receive  right  in  his 
own  name.  Notice  served  to  Mr.  Rossard  to  appear 
with  reference  to  proper  measures. 
Duplicated. 

Sale  of  Real  Estate.  Nov.  4,  1727.  Rodolph  Guillard,  Gern^an, 
who  lives  two  leagues  from  N.  0.,  has  sold  to  Jean 
Baptiste  De  Chavannes,  Secretary  of  Council,  six 
acres  of  land  fronting  on  the  Mississippi,  and  40 
acres  deep,  for  320  francs  cash.  Moreover,  De  C. 
will  pay  36  francs  in  yearly  rental  to  Mr.  De  Noyan, 
attorney  for  the  original  proprietor.  Monsieur  de 
Bienville,  together  with  twelve  capons  each  year,  ano 
twelve  days  of  bounden  labor. 
Filed  No.  270. 

Petition  to  Superior  Council  by  Amavd  Bonnaud.  Nov.  1727. 
(26608.)  Former  storekeeper  of  the  Company  of  In- 
dies, for  sale  of  lot  acquired  from  M.  de  Bienville. 
Signed  "Bonnaud". 

Permit  For  Sale.  Nov.  10,  1727.  (26608)  After  complying 
with  required  formalities.  Signed:  "Perier."  "Dela- 
chaise."  "Brusle.**  "Dausseville."  "Meurrin." 

Statement  Before  Notary  Royal.  Nov.  10,  1727.  (26606)  by 
Arnaud  Bonnaud,  former  store-keeper  of  the  Com- 
pany of  the  Indies,  of  sale  and  transfer  of  above  men- 
tioned lot  to  Mahor  Claude  Damouchel  de  Vilainville, 
on  condition  of  perpetual  annual  rent  to  Mr.  de  Noyan 
and  moreover  of  No.  499  to  vendor  for  clearing,  and 
buildings  on  lot.     Signed:  "Bonnaud." 

Memorandum  of  Account.     Nov.   15,  1727.     Statement  of  Mr. 
Trepannier's  account  with  Company. 
Debit,  30  francs,  1  sou,  6  farthings. 
Credit,  30  francs,  1  sou,  6  farthings. 
Accordingly  closed,  same  date. 
Delachaise. 


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Records  of  the  Superior  Council  of  Louisiana  235 

Receipt.  Nov.  16,  1727.  Bonnaud  has  received  of  Mr.  De  St. 
Julien  by  the  hand  of  Simon  Coon,  German,  the  sum 
of  100  francs  on  account. 

Petition  to  Recover  Wages.  Nov.  17,  1727.  Claude  Himbert, 
alias  St.  Laurent  moves  to  collect  his  wife's  wage  ac- 
count for  three  years  while  she  was  in  the  employ- 
ment of  Mr.  Coupillon  at  Natitoche.  Let  Mr.  B.  be 
cited.  (Wife's  name:  Th6r^e  Le  Compte). 
Action  allowed. 

Petition  and  Summons  in  Suit  of  Claims.  Nov.  19,  1727.  Cap- 
tain Dutisn^  has  a  claim  (in  Spanish  dollars,  Commu- 
table  in  French  crowns),  against  the  estate  of  late 
Duval  Chevreuil,  and  Mr.  Rossard  requires  a  Couri 
order  before  paying.  Let  Mr.  R.  be  so  ordered. 
Approved,  and  notice  served. 

Petition  to  Recover  Property.  Nov.  22,  1727.  Pere  de  Beaubois 
shows  that  all  the  goods  left  by  the  late  Sarrazin  at 
Natchez  belonged  to  the  petitioner,  being  the  stock  of 
goods  consigned  by  him  to  Sarrazin  and  Boree  for 
trade.     Let  seals  be  removed  and  goods  duly  sold. 

Referred  to  Attorney  General,  who  approves  in  ac* 
cord  with  specified  formalities. 

Council  seconds  this  decision,  and  provides  how 
certain  accounts  shall  be  settled. 

Decisions  in  Sundry  Suits.     Nov.  22,  1727. 

1.  Dutisne  vs.  Rossard.     R.  to  pay  201  francs. 

See  27^*^^ 

2.  De  Trenonay  vs.  Bonnaud.     Deferred. 

Costs  reserved. 

3.  Fillart  vs.  Rossard.  R.  shall  give  F.  desired  ap- 
plication, conveying  right  of  perpetual  posses- 
sion. 

Costs  divided. 

4.  Himbert  vs.  Goupillon.  Plaintiff  nonsuited  and 
subject  to  costs.  Document  worn  partly 
through. 

Filed  No.  271. 


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236  The  Louisiana  Historical  Qtuirterly 

Petition  of  Recovery.  Nov.  27,  1727.  Dreux  freres  move  to 
collect  an  account  of  177  francs  from  estate  of  late 
Mr.  Ceard,  who  was  charged  by  Mr.  Delorme  to  pay 
his  debt,  but  died  before  discharging  it.  Let  Mr. 
Rossard,  attorney  for  said  estate,  be  cited. 

Approved,  and  notice  served. 

Faded. 

Marriage  License,  Free  Negro  and  Slave.  Nov.  28,  1727.  Dar- 
by, director  of  Bernard  Cautillon  grant,  authorizes 
marriage  of  John  Mingo,  English  free  negro,  to  Th6- 
rese,  a  slave  negress  of  said  grant,  on  specified  con- 
ditions. John  is  to  pay  as  much  as  he  clearly  can  each 
year  to  redeem  1500  francs,  price  of  Therese.  Darby, 
meanwhile  will  allow  so  much  rice,  corn,  beans,  and  so 
many  sweet  potatoes,  to  feed  Th6r6se ;  item,  her  cloth- 
ing. When  price  is  paid,  Therese  shall  have  her  lib- 
erty. Children,  if  any  be  born  meanwhile,  shall  also 
be  free.  French  text;  with  broken  English  copy. 
Faded. 

Promissory  Note.  Nov.  28,  1727.  (Name  effaced)  promises  to 
pay  Mr.  Dalby  200  francs  each  year  until  full  amount 
1500  francs  be  covered,  on  account  of  negress  The- 
rese. Payments  to  begin  with  November  1,  1728. 
Value  may  also  be  committed  with  another  slave  ne- 
gress. 
Faded. 

Decisions  Between  Trenonay  and  Bonnaud.  Nov.  29,  1727.  De- 
fendant shall  restore  to  DuBuisson  grant  the  ne- 
groes, negresses  and  cattle  in  question,  and  pay 
costs. 

Filed  No.  272. 

Sale  of  Real  Estate.  Dec.  12,  1727.  Joseph  Larchevesque,  with 
the  consent  of  Mr.  de  Noyan,  on  behalf  ofChevalier 
de  Bienville,  sells  six  by  forty  acres  of  land  to  Jean 
Antoine  Maslon  and  Jean  Baptiste  Bergeron,  to- 
gether with  buildings  and    improvements,    for    500 


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Records  of  the  Superior  Council  of  Louisiana  237 ' 

francs,  payable  in  15  days.  Mortgage  security. 
Buyers  will  also  pay  yearly  rental  to  Mr.  de  Noyan, 
of  36  francs,  twelve  fowls  and  twelve  "stunts"  of 
labor. 

Sale  of  Real  Estate.  Dec.  12,  1727.  Pierre  Manad6,  former 
surgeon  Major,  and  his  wife  Demoiselle  Louise  Jous- 
set,  convey  Jean  Marie  Corbin  alias  Bachemin  and 
Dame  Judith  Anne  Marie  Hardy,  his  wife,  ten  by 
forty  acres  of  land  on  the  Mississippi,  three  leagues 
from  N.  0.  with  house  (bark  roof)  and  barn  (palm 
thatched),  and  levee  3  to  4  feet  wide,  extending  along 
seven  acres,  together  with  nine  negroes.  Terms. 
15000  francs  in  stipulated  installments.  Contract  or 
sale,  Nov.  12,  1727;  memorandum  of  tools,  utensils, 
and  various  incidentals,  a  dugout  included,  which  Mr. 
M.  is  to  deliver  to  Mr.  B.,  dated  December  12,  1727. 

Decision  Between  Kolly  and  Duplessis.  Dec.  20,  1727.  Council 
has  allowed  K.'s  opposition,  and  orders  parties  to 
refer  their  papers  to  Mr.  SCRAWL,  for  adjudica- 
tion thereafter. 

Costs  reserved. 

Filed  No.  273. 

Petition  to  Remove  Attachment.    Dec.  22,  1727.     Tixerrant  be- 
seeches release  of  103  francs  (his  money),  distrained 
on  some  walnut  wood  that  he  had  sold  to    Gilberty. 
The  wood  was  seized  in  Pichon's  canoe. 
No  note  by  Court. 

Testimony  in  Robbery  Affair.  Dec.  26,  1727.  Examination  of 
Nicholas  Monsignat  Cadier  alias  Pepy,  native  of  La- 
on,  aged  28  to  29.  (Document  too  badly  scrawled 
and  scorched  for  coherent  elucidation).  Some  pro- 
ceeds of  meat  at  issue,  and  the  acts  "of  one  Renaudot, 
alias  Sans  Chagrin,  soldier. 
Filed  No.  274. 

Testimony  in  Robbery  Case.  Dec.  26,  1727.  Examination  of 
one  Babaz,  aged  36,  native  of  "Marymy  in  Savoy.'* 


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238  The  Louisiana  Historical  Quarterly 

Implicated  with  Sans  Chagrin  and  Pepy  in  disposing 
of  a  treasury  check  for  638  1-2  francs,  taken  from 
Dupuy  Planchard,  in  error  for  six  francs.  Coi^ 
cious,  if  not  premeditated,  fraud  appears  plain  from 
the  answers.  Large  note  was  given  by  mistake  for 
a  small  one ;  did  the  accused  parties  know  the  nature 
of  large  note?  It  seems  that  were  aware  of  the  mis- 
take, and  ready  to  profit  thereby. 

Scorched  and  partly  broken. 

Filed  No.  275. 

Summons  to  Testifij.  Dec.  29.  Sheriff  Dargaray  notifies  Sieur 
Gaulaz,  Renaudais  alias  Sans  Chagrin  and  Heleine 
Houard,  wife  of  Busnel,  to  appear  tomorrow  at  8  A. 
M.  and  testify  concerning  the  negotiation  of  638 
francs  in  mistake  for  six  francs. 

Testimomj  in  Robbery  Case,  Dec.  30,  1727.  Witnesses  Pierre 
Gaulaz,  aged  60 ;  Antoine  Bunel,  aged  31 ;  Pierre  Re- 
naudot,  alias  Sans  Chagrin,  aged  25,  told  what  they 
had  to  say  in  regard  to  the  circulation  of  638  francs 
in  error  for  a  petty  sum ;  but  the  evidence  is  irrepar- 
ably shattered  by  charring. 

Documents  2V^\  2V,  2T''\  27-^^  are  placed  on  dis- 
carded  list. 

Court  For  Further  Hearing,     Dec.  31.     Prisoners  Nicolas  Mont- 
signat  Cadier,  alias  Pipy,  and  Claude  Babaz,  shall  be 
heard  again  and  confronted. 
Signed:  Brusle. 

Trial  For  Fraud  and  Robbery,  Dec.  31.  Confronting  of  Pepy 
with  Babaz.     Contradictions  exchanged. 

Charred  and  torn.     Placed  on  discarded  list. 

Trial  For  Fraud  and  Robbery,     Dec.  31.     Examination  of  Pepy. 
Admits  sharing  the  638  francs  with  Babaz. 
Charred  and  partly  torn. 
Placed  with  discarded  list. 


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Records  of  the  Superior  Council  of  Louisiana  239 

Trial  For  Fraud  and  Robbery.  Dec.  31,  1727.  Examination  of 
Babaz,  tanner  by  trade.  Denies  sharing  638  francs 
with  Pepy.  Objects  to  witnesses,  and  is  willing  to 
submit  to  any  sentence  if  case  can  be  proved  against 
him. 

Charred  and  torn. 

Placed  on  discarded  list. 

Contract  of  Restitution,  Jan.  1.  1728.  Pierre  Gaulaz  agrees 
to  pay  whatever  balance  there  shall  be  required  above 
auction  figure,  in  order  to  realize  200  piastres  gold 
to  Mr.  de  Merveilleux  for  his  (crippled)  slave,  Chou- 
coura ;  since  the  said  sum  had  been  stipulated  between 
Mr.  de  M.  and  Sieur  de  Beaulieux,  settler  at  Chapi- 
tolas.  Further,  P.  G.  will  satisfy  Surgeon  Lasonde  for 
all  costs  on  account  of  said  slave.  These  obligations 
will  mature  in  January,  1728. 

F.  N.  De  Knepper.  January  1,  1728.  On  request  of  Mr.  de  M.  cer- 
tifies to  the  voluntary  nature  of  the  propositions  put 
forth  by  P.  G.  in  the  cause  of  settlement  with  Mr.  de 
M. 

Sentence  For  Fraud,  Jan.  3,  1728.  Attorney  General  Fleuriau 
requires  that  Babaz  and  Monsignat  be  condemned 
conjointly  to  make  restitution  of  the  given  sum, 
638  1-2  francs ;  and  they  shall  each  be  fined  50  francs 
in  alms  for  the  Hospital.  They  are  to  stay  one 
month  in  prison,  and  must  not  relapse?  Costs  on 
both  conjointly. 

Petition  of  Recovery.    Jan.  3.     Councillor  Louis  Prat  claims  20 
bottles  of  claret  and  a  beaver  from  estate  of  the  late 
Mr.  de  Pauger.     Let  Mr.  Delachaise,  executor,  satis- 
fy this  demand  from  estate's  assets. 
Ordered  "communicated  to  Mr.  de  la  Chaise.'' 

Petition  to  Recover  Sale  Proceeds.    Jan.  3,  1728.     Mr.  Rossard, 

attorney,  moves  to  collect  154  francs  due  by  Mr.  Ro- 

.  quigny,  for  goods  which  he  bought  at  auction  of  the 


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240  The  Louisiana  Historical  Quarterly 

late  Mr.  de  Pauger's  property.    Let  Council  order 
Mr.  Delachaise,  executor,  to  meet  this  claim. 
Order  "Communicated  to  Mr.  de  la  Chaise." 

Contract  of  Emigrants.  Jan.  3,  1728.  Marie  Anne  Morin, 
widow  of  Gabriel  Valleau  desiring,  to  emigrate  with 
her  daughter  Marie  Anne  Valleau,  aged  about  six 
years,  to  Louisiana,  agrees  to  certain  financial  pro- 
visors  with  Mr.  Edm6,  Company's  agent  at  La  Ro- 
chelle;  but  the  context  is  worn  and  effaced  beyond 
legible  construction. 
Torn  and  faded. 

Summons  to  Attend  Hearing.  Jan.  5,  1728.  Sheriff  Dargaroy 
notifies  Sieur  Gaulade,  and  one  Renaudaud,  alias 
Sans  Chagrin,  and  Heleine  Houard,  wife  of  one  Bus- 
nel  to  appear  at  8  A.  M.  to-day,  for  review  of  their 
testimony  and  to  be  confronted  with  Boibase  (Ba- 
baz)  and  Pipy.  (This  by  motion  of  the  Attorney 
General.) 

Before  Antoine  Brusle.  (No.  280)  Councillor  in  the  Superior 
Council,  Jan.  3,  1728.  Interrogation  of  Claude  Ba- 
baz;  store-keeper  being  called  in  to  complete  number 
of  judges  before  prosecuting  said  Babaz  criminally, 
on  demand  of  Attorney  General  of  the  King. 

Signed:  "C.  Babaz,"  "D'ausseville"  (paraph) 
"Pratt,"  "Sir  Duval"  (paraph)  "Pellerin"  (paraph). 

Ip.  Document  in  good  condition. 

Interrogation  of  one  Monsegna  before  Councillor  Brusle.  Jan. 
5,  1728.     (No.  280.)  ' 

Signed:  "Brusle"  (paraph).  "Prat",  "Monsegna," 
"Pellerin,"  "Sr.  Duval." 

I.  P.  Document  in  bad  condition. 

Re-examination  of  Witnesses  Who  Testified  Against  Babaz,  and 
Monsegna,  so-called  Pepy.  Jan.  5,  1728. 
Signed:  "Brusle"  (paraph)   "Rossard",  "helenne  bu- 
rel,"  P.  Gaulaz,"  I  p.    Document  in  good  condition. 


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Records  of  the  Superior  Council  of  Louisiana  241 

Confrontation  of  Babaz  and  Pepy.  Jan.  5,  1728.  Signed :  "he- 
lenne  burel,"  "Monsegna",  "Brusle"  (paraph).  "Ros- 
sard."    No.  284.     I  p.  Document  in  good  condition. 

Confrontation  of  Babaz  and  Pepy.  Jan.  5,  1728.  (No.  283) 
Signed:  "helenne  burej,"  "Babaz,"  "Brusle"  (par- 
aph).   "Rossard."      2  1-2  pp.  (in  good  condition). 

Petition  to  Recover  Document  Jan.  6,  1728.  Charles  St. 
Pierre  de  St.  Julien,  officer,  moves  for  citation  of  An- 
dre Suandre  (also  written  Crequiandre) '  who  balks 
at  releasing  a  certain  application  for  land.  Late 
holder,  Dauphin,  had  bequeathed  this  paper  to  Gin- 
tel,  towards  collecting  40  francs  from  St.  Julien ;  but 
the  paper  was  left  in  the  custody  of  Mr.  Suandre.  Mr. 
St.  Juhen  has  paid  Gintel,  and  now  desires  possesion 
of  corresponding  voucher. 

Notice  served. 

Sentence  (Repeated)  For  Fraud.  Jan.  7,  1728.  In  final  review 
of  the  case,  including  the  procedure  of  January  5, 
1728,  Attorney  General  Fleuriau  pronounces  judg- 
ment in  same  terms  as  already  provided  in  his  re- 
quirements of  January  3,  1728. 

Certificate  of  Voluntary  Action.  Jan.  10,  1728.  Surgeon  La- 
sonde  certifies  that  Sieur  Gaulaz  came  to  arrange 
with  him  at  Natchez  concerning  the  dressing  of  the 
wounds  of  negro  Choucoura,  and  that  Mr.  G.  was  not 
constrained  by  Mr.  De  Merveilleux  to  pay  the  sur- 
geon's account,  but  acted  on  his  own  free  will. 

Marriage  Contract.  January  10,  1728.  (9283)  (2242)  Before 
notary  marriage  contract  between  Jacques  Bouchanne 
and  Genevieve  Cheval.  Signed:  "Jeanne  Cheval,*' 
"Creval  Gaston,"  "F.  Gallot,"  "Vongy,"  "lenormand," 
"Henry"  (paraph). 

Demand  by  Attorney  General.  Feb.  1,  1728.  Demand  of  the  King 
that  above  contract  be  published  at  the  next  session  of 


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242  The  Louisiana  Historical  Quarterly 

the  Superior  Council  and  be  registered  by  Clerk  of 
Council.  Signed :  "Fleurian."  "Hugault."  Document  in 
good  condition,  contains  7  pp. 

Petition  to  Receive  Estate  Goods.  Jan.  14,  1728.  Mr.  Duver- 
ger,  attorney  for  widow  Queant,  and  guardian  of  her 
minor  children,  moves  to  obtain  charge  of  the  estate's 
property,  commercial  paper  included. 
Approved  and  notice  served  to  Mr.  Michel  Rossard, 
attorney  for  vacant  estates. 

Petition  of  Recovery.  Jan.  20,  1728.  Francois  Brunet,  edge- 
tool-maker,  claims  a  wage  account  of  338  francs,  17 
sous,  from  Ste.  Catherine  grant.  Let  Mr.  de  Mande- 
ville  be  cited  since  he  succeeds  former  Director  Du- 
manoir. 

Action  allowed. 

Duplicated. 

Judgments  Rendered  in  Following  cases.  Jan.  24,  1728.  No. 
285: 

Lecas  vs.  Cartelon. 
Pierre  Gonlar  vs.  Sr.  de  Merveilleux. 
Duplessy  vs.  KoUy. 

Signed:    "Perier,"   **Deiachaise,"   "Brusle,"    (par- 
aph).   "Prat,"  **D'auseville  raporteur'*  (paraph). 
Document  in  good  condition.     1  1-2  pp. 

Memorandum  of  Medical  Attendance.  Jan.  28,  1728.  Dr.  Alex- 
andre submits  his  account  for  treatment  dispensed  on 
Ste.  Reine  grant;  also  to  the  late  Mr.  Ceard  during  his 
illness. 

Ingredients  include  usual  stock  items  like  "hipe- 
cac,"  laudanum,  oil  of  almonds;  but  also  more  un- 
usual "dragon's  blood,"  eyes  of  crabs,  extract  of  red 
roses,  "water  of  the  Queen  of  Hungary." 

Total  bill,  472  francs. 

Councillor  Prat  appends  a  note  certifying  that  he 
affixed  the  drug  prices. 


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Records  of  the  Superior  Council  of  Louisiana  243 

Judgments  Rendered  in  Following  Cases  i  January  31,  1728, 
No.  286: 

Gaspard  Aigle  vs.  Regnier. 
Francois  Brunet  vs.  de  Mandeville. 

Signed:  "Prr,"  "Del,"   (paraph  of  Brusle)   "Dlle," 
(paraph) 
P.     Document  slightly  torn.  1-2  p. 

Notice  to  Keep  the  Peace.  Feb.  1,  1728.  Demoiselle  Francoise 
Martin,  widow  of  late  Mr.  de  la  Goublais  vs.  Marie 
Valette,  wife  of  Jean  Coupard.  Sheriff  Dargaray  no- 
tifies Dame  Coupard  (also  written  Poupard)  that  a  de- 
cision has  been  proposed,  enjoining  her  to  cease  vex- 
ing, ill  treating  and  insulting  the  plaintiff,  under 
,  penalty  of  corporal  punishment. 

Charred  and  partly  broken. 

Decisions  Rendered  in  the  Following  Cases:    Feb.  14,  1728: 
Duplessy  Georges  vs.  Kolly. 
Brunei  vs.  Mandeville. 

Signed  "Prr,"  "Del,"  (paraph)  "P."  Document 
torn,  1  p. 

Petition  of  Recovery.  Feb.  14,  1728.  Arnaud  Bonnaud,  attor- 
ney for  one  Cordier,  apothecary  at  Port  Louis  In 
Brittany,  moves  for  citation  of  Mr.  Kolly,  to  meet  a 
protested  letter  of  exchange  for  220  francs,  7  sous, 
6  farthings,  payable  in  gold  or  silver  specie  and  not 
otherwise. 

Action  allowed,  and  notice  served  to  Mr.  Daniel 
Kolly. 

Petition  For  Separation  in  Marriage.  Feb.  15,  1728.  Madame 
Louise  Jousset  La  Loire,  wife  of  Surgeon  Pierre  de 
Manade,  lodges  complaint  against  his  violent  cruelty, 
sundry  acts  of  which  their  very  venial  provocations 
she  relates.  She  desires  to  obtain  legal  separation 
from  him,  and  meanwhile,  to  retire  to  the  Ursuline 
Convent. 

(First  reference  among  the  records  thus  far  exam- 
ined under  the  records  under  early  period,  to  the  Ur- 
sulines  at  N.  0. 


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244  The  Louisiana  Historical  Qicarterly 

Petition  of  Recovery.     Feb.  20,  1728.     Morisset,  employe  (cash- 
ier) ,  has  attached  the  sum  of  293  francs  against  one 
Quider,  who  disputes  this  amount.    Let  Q.  be  cited. 
Action  forward. 

Petition  to  Sell  a  House.  Feb.  21,  1728.  Coupard  asks  leave  to 
sell  a  house  of  his  opposite  the  barracks,  having 
bought  another  lot. 

"Permitted  the  said  sale,  seeing  he  owes  nothing  to 
the  Company." 

Signatures:  Perier,  Delachaise,  Brusle,  D'Ause- 
ville.    Mark  of  Coupard. 

Petition  For  Extension  of  Time.  Feb.  23,  1728.  Pierre  de  Ma- 
nade  has  been  cited  to  pay  a  protested  draft  for  545 
francs  in  gold  and  silver  specie.  He  objects  that 
copper  has  been  declared  legal  tender  in  this  Colony 
on  same  footing  with  gold  and  silver  specie;  and  he 
further  beseeches  one  year's  respite. 
Notice  given  to  Mr.  Arnaud  Bonnaud,  plaintiff. 

Account  of  Labhe,  farmer,  with  the  Company  of  the  (1728-1737) 
Indies  for  negroes  and  advances  of  money,  amounting 
to  £7520.  Said  accoount  verified  by  vouchers,  calcu- 
lations made  in  New  Orleans  Nov.  19,  1737. 

Decisions  of  Superior  Council  in  following  casess  Feb.  28  No. 
288: 

Rossard,  Attorney  of  vacant  property  vs.  de  Noyan 
and  Rev.  P.  Raphael. 
Morisset  vs.  Guidor. 
Dupralong  vs.  Gusson. 
Pimard  vs.  Egle. 
Sr.  Lavique  vs.  One  Parisien. 

Signatures  visible : "Del"  paraph  of 

Brusle.    paraph  of  Dausseville.  Document  falling  to 
pieces.  Parts  missing.  1  1-2  p. 

Petition  of  Recovery  by  Seizure.  Feb.  24,  1728.  Deschampi 
seeks  to  seize  a  coat  which  his  debtor,  Parisien,  a  sol- 


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Records  of  the  Superior  Council  of  Louisiana  245 

dier,  also  known  as  Postet,  has  ordered  of  the  tailor, 
Robert;  in  security  for  claim  of  49  francs. 
Approved,  and  notice  served  to  Parisien. 

Petition  For  Extension  of  Time.  Feb.  25,  1728.  Quidort  still 
disputes  the  sum  claimed  by  Mr.  Morisset,  and  calls 
for  presentation  of  his  note  in  question.  He  also  be- 
speaks one  year's  respite,  as  he  has  incurred  various 
loses. 

Incidental  reference  to  death  of  Sheriff  La  Moris- 
siere. 

Report  of  Inventory.  Feb.  25,  1728.  Sheriff  Dargary  notes  the 
articles  which  he  has  found  after  proceedings  of  at- 
tachment against  Pierre  Sage ;  the  goods  tjeing  stored 
in  a  dugout  belonging  to  Mr.  Raymond  Amyot  Es- 
quire D'Auseville.  Miscellany  of  items  includes  a 
barrel  of  pecans  (pacannes),  mirror  with  walnut 
frame,  bear's  grease,  a  deerskin  and  a  small  bearskin. 
There  were  also  23  barrels  of  whole  corn  (in  the  ear) 
one  barrel  of  peas,  two  of  Apalachee  beans.  Mr.  R. 
A.  D'A.  had  consigned  the  goods  to  Sage,  alias  Bus- 
son,  for  trading  purposes. 

Petition  to  Recover  Slaves  and  Cattle.  Feb.  27,  1728.  Mr.  Ros- 
sard  once  again  revives  his  claim  on  Mr.  de  Noyan, 
on  account  of  Bordier's  missing  letter  of  exchange. 
Case  was  put  off  till  "arrival  of  next  vessel,"  but 
more  than  one  vessel  has  arrived,  and  Mr.  M.  de  N. 
still  retains  the  slaves  and  cattle.  Even  if  the  drafts 
were  not  yet  paid,  these  ''movables"  cannot  be  held  in* 
definitely  against  preferred  claims.  Let  the  slaves 
and  cattle  be  returned,  and  hire  paid  for  slaves  since 
Feb.  1,  1727,  at  4  francs  a  day  for  each  slave,  until 
date  of  restitution. 
Action  allowed. 

Petition  of  Recovery.  March  1,  1728.  Joseph  Larchevesque 
sold  to  Jean  Antoine  Malon  (also,  Maslon)  and  Jean 
Baptiste  Bergeron,  six  acres  (frontage)  of  land,  for 


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246  The  Loui^iq^na  Historical  Quarterly 

500  francs.     6-  has  paid  his  portion,  but  M.  refuses. 
Let  M.  be  cit^d- 
Action  allowed. 

Petition  of  Recovery.    Mwch  2,  1728.     Captain  De  Tronquidy  of 
La  Loire,  claims  200  francs  of  Messrs.  Hamoh  and 
Co.,  due  on  a  WPte  dated  Jan.  26,  1727. 
Action  allowed. 

Petition  of  Recovery.    Bifarch  2,  1728.  Mr.  Droy,  guardian  of 
the  minor  ch}l(Jren  of  the  late  Larrivi^re,  moves  to 
collect  200  f raises  due  to  Lariviere  estate  by  Mr.  Lan- 
glois. 
Action  aljowed,  and  Mr.  Augustin  Langlois  cited. 

Petition  of  Recovery.    Ifftrch  2,  1728.     Louis  Rousseau,  alias  La 
Flamme,  s^owg  that  Malon  the  tailor  had  agreed  to 
pay  L.  R.  480  francs  in  money  or  in  letters  of  ex- 
change, but  that  M.  now  refuses.    Let  him  be  cited. 
Approved,  and  notice  served. 

Petition  to  Cancel  Contract-  March  4,  1728.  Mr.  Kanunon  ad- 
mits that  he  gave  his  note  (for  200  francs  )  to  Cap- 
tain DeTronquldy,  but  in  the  understanding  that  the 
payment  shpijl^  be  "at  will,"  and  would  not  be  pushed 
Mr.  H.  lacks  funds,  and  begs  to  surrender  the  land  in 
question,  subject  to  annulment  of  given  note. 

Decisions  in  following  Cmcs:'  March  6,  1728. 

Arnaud  Bonn^Hd  vs.  Kolly. 
Joseph  Larcheveque  vs.  Jean  Corbin  Masson. 
Roussard  v^.  Masson. 
Rousseau  vs.  Malo. 

Signatures  torn  away.    Document  in  bad  condition 
1  1-2  pp. 

Petition  in  Remonstrance.  March  8,  1728.  Antoine  Bonvillain 
was  judged  in  default  and  sentenced  to  costs  in  his 
suit  against  Madame  Roy,  for  a  bill  of  72  francs  due 
for  iron  work  pn  a  plough.     Mr.   B.   was  prevented 


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Records  of  the  Superior  Council  of  Louisiana  247 

from    appearing  by  lack  of  conveyance,  and  he  begs 
to  oppose  the  said  sentence,  that  he  may  still  recover 
his  claim  from  Madame  Roy. 
Action  allowed. 

Petition  For  More  Time.  March  8,  1728.  Claude  de  Trenonnay 
Chanfret,  directot*  of  DuBuisson  grant  (at  Bayou- 
goula),  cannot  cotnply  with  ruling  which  calls  for 
prompt  accounting  by  him ;  he  lacks  the  necessary  pa- 
pers. He,  therefore,  asks  for  six  months'  delay;  or 
else  let  Mr.  De  Verteuil  turn  over  his  account  to  pe- 
titioner, and  in  this  case  let  three  months  be  allowed. 
Nonsuit  DeV.,  and  put  costs  on  him. 
Notice  served  to  DeV.  to  appear  on  Maicn  16. 

Petition  in  Separation  Suit.  March  11,  1728.  Madame  Louise 
Jousset  Laloire  Manade  moves  to  recover  her  mar- 
riage portion,  here  described  in  detail,  and  applies  for 
a  board  allowance  of  800  francs  yearly. 
Notice  served  on  Pierre  Manade,  and  seizure  allowed 
of  his  credit  with  Mr.  Bachemin. 

Petition  in  Remonstrance.  March  12,  1728.  Mr.  De  Verteuil, 
pleads  that  he  made  an  offer  to  examine  the  accounts 
of  Jjis  administration  of  DuBuisson  grant,  in  conjunc- 
tion  with  Mr.  Trenonay  de  Chanfret,  who  refused 
brought  suit  for  extension  of  time.  Eight  days  would 
be  long  enough  to  overhaul  the  accounts  with  Mr. 
DeV.'s  assistance;  and  without  it,  Mr.  T.  could  make 
no  headway,  seeing  that  Mr.  DeV.  alone  can  clear  up 
doubtful  matters  by  the  way.  Neither  can  Mr.  DeV. 
afford  to  postpone  by  the  month  his  proposed  depar- 
ture for  France  by  the  Due  de  Noailles.  Mr.  DeV. 
would  also  recover  the  four  distrained  trunks.  Let  Mr. 
T.  be  nonsuited. 

Notice  given  to  Mr.  T. 

Petition  in  Remonstrance.  March  13,  1728.  Pierre  de  Manade 
"protests  from  this  date  and  as  far  as  he  can  protest,'" 
at  the  course  of  the  proceeding  in  favor  of  his  wife. 
Let  a  reporter  be  named  to  brief  the  articles  at  issue, 


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248  The  Louisiana  Historical  Qvxirterly 

and  let  the  seizure  moved  by  Madame  be  suspended. 
No  note  by  Court. 

Separation  Suit  Adjourned.  March  13,  1728.  Council  allows 
defendant,  Surgeon  Pierre  de  Manag^,  a  week's  res- 
pite ;  in  which  time  he  may  turn  in  his  defense,  either 
avowing  or  contesting  the  pending  charges. 

Decisions  in  Following  Cases:  March  13,  1728    No.  390. 

De  Noyan  vs.  Verteuil. 

Louise  Jousset  de  Laloire  vs.  Pierre  de  Manade. 
Marguerite  Savard  vs.  Sr.  Jallot. 
.  Signed:  "Prr,"  "Del,"  paraph  of  Brusle.     "P"  par- 
aph of  Dausseville. 

1  p.  Torn  and  ink  eaten. 

Meanwhile  he  shall  not  molest  Madame  de  Manadd 
(now  harbored  by  the  Ursulines) ;  who  "will  not  stay 
safeguarded  by  the  Kinjer's  Justice." 

Notice  served  to  defendant. 

Decisions  Between  Droy  and  Larividre.  March  20,  1728.  Mr. 
Augustin  Langlois  shall  pay  Mr.  Droy  the  given  claim 
of  200  francs,  and  A.  L.  is  nonsuited  in  demands  of 
his  own. 

Costs  on  A.  L.  ^ 

Declaration  of  Sieur  de  Matiade  that  he  consents  to  separation 
of  property  demanded  by  his  wife,  but  not  to  separa- 
tion  of  bed  and  board. 
March  20,  1728. 

Signed:  "Pre  Manade,"  "Rossard  clerk".  1-2  p. 
Document  in  good  condition. 

Decisions  of  Superior  Council  in  following  Cases:       March  20, 
1728.     No.  292. 
Droy  vs.  Langlois. 
Courot  vs.  Kolly. 
Jean  Lasserre  vs.  Duplessy. 

Signed:  "Perier,"  "Del,"  paraph  of  Brusle.  "P." 
paraph  of  Dausseville. 

2  pp.     Not  torn  but  badly  stained. 


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Records  of  the  Superior  Council  of  Louisiana  249 

Contract  To  Buy  Slave.  March  23,  1728.  Laurent  Chevirty, 
alias  Vitry,  locksmith,  having  received  a  slave  from 
Mr.  Gerard  Pellerin,  guard  of  Company  stores,  agrees 
to  pay  for  said  (negro)  slave,  1000  francs  in  three 
crops  of  indigo,  tobacco  or  other  produce  marketable 
in  France.  Mortgage  security.  Slave  was  importea 
by  the  ship  Due  de  Noailles.  Buyer  must  also  fur- 
nish 30  days  of  labor  in  the  public  service. 

Receipt  March  27,  1728.  Chapitoulas.  J.  Viard  received  of 
Mr.  Lafreniere  the  quantity  of  7  pickaxes  and  other 
sundry  articles  of  trade  utility,  and  promises  to  pay 
at  his  option. 


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Statement  of  the  Ownership.  Management,  Circulation,  etc.,  required 
by  the  Act  of  Congress  of  August  24,  1912.  of  the  Loulariana  Historical 
Quarterly,  published  quarterly  at  New  Orleans,  La.  for  April  1,  1921. 
State  of  Louisiana,  Parish  of  Orleans.  Before  me,  a  Notary  Public,  in 
and  for  the  State  and  Parish  aforesaid,  personally  appeared  John  Dy- 
mond.  who,  having  been  duly  sworn  according  to  law,  deposes  and  says 
that  he  is  the  Editor  of  the  Louisiana  Historical  Quarterly,  and  that  the 
following  is.  to  the  best  of  his  knowledge  and  belief,  a  true  Fftatement  of 
the  ownership,  management,  etc.,  of  the  aforesaid  publication  for  the 
date  shown  In  the  above  caption,  rf-nuired  by  the  Act  of  August  24, 
1912.  Publisher,  Louisiana  Historical  Society.  Editor,  Managing  Editor, 
Business  Manager,  John  Dymond,  New  Orleans,  La.,  2.  That  the  owners 
are:  The  Louisiana  Historical  Society  and  issues  no  stock.  Officers 
are:  G.  Cusachs,  President;  John  Dymond,  Firsft  Vice-President:  Wil- 
liam Kernan  Dart,  Second  Vice-President;  Henry  Renshaw,  Third  Vice- 
President;  W.  O.  Hart,  Treasurer  and  Bussiere  Rouen,  Corresponding 
Secretary,  all  of  New  Orleans,  La.  3.  That  the  known  bondholders, 
mortgaged,  and  other  securities  holders  owning  or  holding  1  per  cent,  or 
more  of  total  amount  of  bonds,  mortgages,  or  other  securities  are: 
None.  Signed  John  Dymond,  Editor.  Sworn  to  and  subscribed  before 
me  this  first  day  of  April,  1921.  (Seal)  Augustus  Williams,  Notary 
Public.  (My  Commission  is  for  lifetime.) 


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The  Louisiana 
Historical  Quarterly 

VoL  4,  No.  3  July,  1921 


Courts  and  Law  in  Colonial 
Louisiana. 

Servinien*s  Case — 1752. 

Records  of  the  Superior  Council 
of  Louisiana. 

Cabildo  Archives  {Supplement 
to  No.  VI  and  No.  VIL) 

Louisiana  Confederate  Military 
Records. 


Published  June,  1922 


Published  Quarterly  by 

THE  LOUISIANA  HISTORICAL  SOCIETY 

CABILDO,  NEW  ORLEANS,  LA. 


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The  Louisiana 
Historical  Quarterly 


Vol.  4.  No.  3 


July,  1921 


^tcfed  to  the  Moond  daM  mail  matter  Jane  6. 1917,  at  the  poat-oOke  at  New  Orleaiia,  La., 
under  Act  ol  Atiguat  24,  1912. 

SubecrlptloQ  $2.00  per  annum,  payable  in  advance.    Addreaa,  Louisiana  Hbtorical  Quarterly, 
Cabildo.  New  Orleana.  La. 


Ramires-Jones  Printing  Co. 
Baton  Rougf,  La. 


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'  ■-  /- 


OFFICERS 

,OF  THE  .  . 

LOUISIANA  HISTORICAL  SOCIETY 

CASPAR  CUSACHS,  President. 

JOHN  DYMOND.  First  Vice-President, 

BUSSIERE  ROUEN,  Second  Vice-President. 

HENRY  RENSHAW.  Third  Vice-Preskjent, 

W.  O.  HART,  Treasurer. 

HENRY  P.  DART,  Archivist,  * 

MISS  GRACE  KING,  Recording  Secretary. 

MRS.  HELOISE  HULSE  CRUZAT,  Corresponding  Secretary. 

Executive  Committee 

John  Dymond,  Chairman;  Caspar  Cusachs,  Bussiere  Rouen,  Henry  Renshaw 
W.  O.  Hart,  Henry  P.  Dart,  Miss  Grace  King  and  Mrs.  Heloise  Hulse  Cnizat. 

Editor  Historical  Quarterly 

JOHN  DYMOND  Cabildo.  N-w  Orleans 


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Table  of  Contents 

Vol  I  ME  4,  Nc.  3  July,  1921 


Courts  and  Law  in  Colonial  Louisiana... 255 

Henry  Plauch^  Dart 

Servinien's  Case— 1752 290 

Edited  by  Henry  Plauch^  Dar't 

Records  of  the  Superior  Council  of  Louisiana 324 

Cabildo  Archives  (Supplement  to  No.  H  and  No.  VH) ....361 

Edited  by  Henry  Plauch^  Dart 

Louisiana  Confederate  Military  Records. 369 

A.  B.  Booth 


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The  Louisiana 
Historical  Quarterly 

Vol.  4,  No,  3  July,  1921 

COURTS  AND  LAW  IN  COLONIAL  LOUISIANA 


By  Henry  Plauchi  Dart 

of  the  New  Orleans  Bar 


Address  at  Annual  Meeting,  Louisiana  Bar  Association, 
Shreveport,  La.,  June  3,  1921. 


{Reprinted  from  Official  Report.) 

The  President:  The  next  number  on  our  program  will  be  an  ad- 
dress on  the  ''History  of  the  Louisiana  Law,"  by  the  Honorable 
Henry  P.  Dart,  one  of  the  most  distinguished  lawyers  of  the  New, 
Orleans  Bar  as  well  as  of  the  entire  State  of  Louisiana. 

Mr. Henry  P.  Dart:  Mr.  President,  and  Brethren  of  the  Louis- 
iana Bar  Association,  because  there  is  no  sex  before  the  Bar. 

I  scarcely  know  how  to  begin  to  talk  about  the  subject  which 
has  been  cast  upon  me,  while  still  hearing  in  my  ears  the  announce- 
ment of  my  friend  in  the  chair.  I  did  not  know  that  I  had,  even  in 
my  own  borders,  any  such  reputation. 

I  cught  to  say  to  you,  gentlemen,  that  the  program's  title  to  the 
address  which  I  am  to  deliver  is,  to  some  extent,  a  snare.  To  imagine 
that  the  speaker,  or  any  other  lawyer,  old  or  young,  could  tell  the 
history  of  the  law  of  Louisiana,  or,  rather,  of  the  law  in  Ix)uisiana, 
within  twenty,  thirty  or  forty  minutes,  would  be  to  believe  that  we 
have  returned  to  the  day  of  the  marvel  and  the  miracle.  I  shall  ask 
the  Secretary  to  give  it  another  title  after  he  hears  me  this  morning. 

I  suspect  the  only  reason  my  service  was  enlivSted  is  that,  for 
eighteen  months,  I  have  been  working  in  a  treasure  house  of  French 


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256  The  Louisiana  Historical  Quarterly 

and  Spanish  times  down  at  the  Cabildo  in  New  Crleans.  This 
treasure  house  holds  the  judicial  records  of  the  French  Superior 
Council  and  the  Spanjsl}  Cjabijdo  ^•'a  cc^llectigi^  o^  French  and  Spanish 
legal  documents  nmning  from  1712  to  1803;  a  quaint  mixture  of  old 
French  legal  phrases  and  curr^ntj  Colonial  French;  and  ^  like  mixture 
in  Spanish  form.  Tlhose.whbrti  I  thought  cdiri^reati  tlioke  {iocuments 
soon  stranded  on  the  translation.  It  was  clearly  a  task  requiring 
skill  and  knowledge,  not  only  in  languages,  but  also  in  antiquarian 
knowledge  of  Louisiana.  I  saw  enough,  however,  to  realize  'that  I 
had  found  the  archives  which  would  throw  light  on  the  origin  and 
sources  of  Louisiana  law  and  practice;  that  indeed  I  was  at  the 
threshold  of  our  law.  And  with  the  missionary  spuit  strong  upon  me 
I  began  to  try  to  arous^lAtei^est.  'At 'first  it  was  fiut'a  'cVy  in  the 
wilderness;  the  brethren  would  stop  and  listen  courteously,  but  alas, 
these  are  strenuous  times,  they  would  say,  and  we  must  get  on.  The 
newspapers  thought  they  saw  something  in  it  that  would  incre?se 
their  circulation,  and  the  reporters  handled  the  manuscripts,  but 
they,  too,  turned  away.  They  took  some  pictures  and  wrote  some 
headlines,  but  who  the  devil,  said  the  editor,  knows  anything  about 
it?  One  of  the  scribes,  indee^i,  wanted  to  know  whv  these  people 
wrote  **in  a  foreign  language  anyway?"  English  is  so  easy. 

And  yet,  there  before  me  lay  fifty  thousand  documents  or  more 
that  told  of  the  daily  life  of  our  ancestors;  of  their  births  and  deaths, 
of  their  marriages  and  their  children;  their  contracts  and  disputes, 
their  purchases  and  sales,  their  will§  and  their  estates.  My  un- 
skilled eye  picked  out  precedents  that  were  appearing  in  the  same 
forms  in  our  practice  today,  and  references  to  legal  systems  that 
we  still  refer  to,  but  nevertheless,  the  door  which  J;iad  been  opened 
to  me  seemed  about  to  close  again,  as  doubtless  it  had  opened  and 
closed  on  others  who  perchance  had  strayed  upon  these  papers 
before  me.  One  may  have  a  spiritual  and  patriotic  interest  in  ancient 
dociunents,  but  at  my  age  he  may  not  undertake  this  task  alone, 
for  the  spiritual  and  the  physical  are  necessary  elements  in  a  job  of 
this  character.  Then  literally  out  of  a  clear  sky,  cJ^me  the  relief.  A 
philanthropist  of  New  Orleans  had  seen  one  of  the  appeals,  and  with 
a  gift  in  his  hand  he  said  to  me,  *'I  don't  know  what  it  all  means,  but 
here  is  som.ething  to  begin  the  work  with.Maybe,"  he  said,  "the  people 
will  follow  it  up  if  we  begin  it."  It  was  a  very  perfect  thing  he  did, 
for  his  gift  enabled  me  to  employ  ccmpetent  help,  and  for  twelve 
months  the  good  work  has  gone  on. 

These  records  have  a  history;  there  has  been  a  legend  in  New 
Orleans  that  the  papers  locked  up  in  certain  black  boxes,  an  hundred 


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Courts  and  Law  in  Colonial  Louisiana  267 

or  more^  contained  all  the  secret  history  of  the  wicked  French  and 
Spanish  days;  now  and  then  some  historian  would  get  a  glimpse  at  a 
box  and  wafe  appalled  at  the  confusion,  and  perhaps  at  the  jargon^ 
5'et  the  legend  prevailed,  and  one  news  writer  revived  it  when  we 
opened  up  the  boxes,  and  he  warned  all  the  descendants  of  Creole 
days  who  had  a  skeleton  in  their  closets  to  be, on  the  qui  rive,  for  now 
it  was' about  to  bfe  exposed,  anc}  one  deai  old  soul  visited  us,  fixed 
in  the  belief  that  she  would  be  able  to  see  it.  "Please,'*  she  said, 
**please  let  me  see  the  skeleton/' 

The  local  i  archives  of  ancient  Ix)uisiana  were  sealed  in  1803 
under  the  wders  of  Laussat,  the  French  commissionerr  and  when 
Claiborne  took  charge  he  found  under  these  seals  the  judicial  records 
of  the  French  and  Spanish  periods,  and  also  the  notarial  necords  of 
the  latter  era.  On  the  ground  of  public  necessity  he  permitted  access 
to  these  records,  which  he  had  caused  to  be  placed  in  the  custody 
of  the  Mimicipal  Council  of  New  Orleans  and  which  later  on  were 
transferred  to  the  care  of  Peter  Pedesclaux,  who  was  a  notary  in 
Spanish  times  and  who  was  appointed  to  the  same  office  by  Claiborne. 
Under  thisf  appointment  P^esclaux  may  be  considered  the  first 
custodian  of  notarial  records  in  New  Orleans,  an  office  well  established 
in  oiu"  system.  These  papers  of  the  preceding  governments  remained 
intact  for  many  years,but  unfortunately  no  list  or  index  was  made, 
though  this  had  been  ordered  by  the  Legislative  Council.  The 
writings  of  Judge  Martin  and  Mr.  Gayarre  show  familiarity  with 
these  records,  but  those  authors  made  very  little  use'  of  the  material^ 
possibly  because  it  did  not  fall  within  the  scope  of  their  literary  work. 
Finally,  in  Gayarre's  early  years,  the  archives  were  removed  to 
Baton  Rouge,  doubtless  through  his  efforts,  and  they  were  placed 
in  the  custody  of  the  Louisiana  Historical  Society,  whose  domicile 
was  fixed  in  that  place  by  the  I-^gislature,  which  made  the  Society 
custodian  of  the  archives. . 

When  the  capitol  was  burned  by  the  Federal  troops  in  1862 
the  archives  were  injured  by  fire  and  water  and  the  better  part 
plundered  and  carried  off  by  the  invading  soldiers.  Years  after  the 
war  a  great  quantity  were  located  in  Wisconsin;  principally  through 
Gayarre's  efforts  they  were  recovered  and  brought  to  New  Orleans, 
where,  after  still  other  adventures  and  vicissitudes,  they  reached 
again  the  custody  of  the  Historical  Society,  and  what  remains  of  the 
archives  so  sedulously  preserved  by  Laussat  are  now  in  the  Cabildo. 

We  are  late  at  the  feast,  so  to  speak,  and  can  only  do  our  best 
now  with  what  is  left.    Perhaps  in  time  the  minute  books  of  the 


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258  The  Louisiana  Historical  Qtuirterly 

Superior  Council  and  of  the  Cabildo  and  valuable  other  lost  material, 
may  still  be  recovered;  like  strayed  kittens  such  things  have  a  canny 
habit  of  returning  to  their  owners,  and  we  expect  much  to  happen 
when  it  is  known  that  the  State  has  recognized  her  duty  and  created 
a  department  of  archives. 

These  records  which  we  have  are  now,  for  the  first  time,  being 
examined  and  put  in  order.  An  alphabetical  and  topical  index  has 
been  started,  and  here  and  there  translations  are  being  made,  chiefly 
to  whet  the  appetite  of  the  student  and  as  an  evidence  of  the  value 
of  our  collection,  which  covers  much  inform-^ tion  regarding  the  judi- 
cial, governmental  and  economical  history  of  the  Colony  and  Prov- 
ince of  Louisiana.  We  have  here  eiough  to  develop  the  coiu-se  of 
life  in  all  these  departments  during  ne^riy  one  hxmdred  yeai^s  under 
French  and  Spanish  rule. 

But  the  gift  which  enabled  us  to  start  tlis  work  is  insufficient  to 
complete  the  task,  even  on  the  meagre  lines  here  indicated,  and 
clearly  the  preservation  of  these  archives;  the  search  for  others;  the 
accumulation  in  one  place  of  material  uncared  for  in  the  various  de- 
partments of  government;  the  establishment  of  a  safe  place  or  cen- 
tral location  for  the  archives;  the  employment  of  caretakers;  in  short, 
the  creation  of  a  Department  of  Archives  in  Louisiana,  are  all  matters 
for  legislative  action. 

As  lawyers,  the  shame  falls  on  our  profession  if  we  neglect  this 
vital  thing,  and  I  shall  use  the  few  moments  allotted  me  on  this 
program  to  establish,  as  I  hope  I  can,  the  duty  that  is  on  us  to  take 
action  to  preserve  not  only  our  colonial  archives,  but  also  the  vast 
accumulations  of  State  and  private  papers  which  fall  under  that 
definition.  If  time  spared  I  could  rebuild  before  your  eyes  from  these 
records  at  the  Cabildo  the  machinery  of  government  in  French  and- 
Spanish  Louisiana,  and  picture  the  procedure  and  practice  in  the 
courts  and  revive  some  of  the  decisions  which  created  precedents 
that  found  their  way  later  into  our  codes  and  jurisprudence,  but  this 
is  not  possible  here  and  I  shall  content  myself,  instead,  with  glimpses 
at  the  contents,  leaving  your  imagination  to  kindle  the  scene,  the 
historical  procession  which  would  follow  if  these  records  were  at 
public  conmiand. 

L 
French  Period 

The  history  of  this  part  of  ancient  Louisiana  begins  with  La 
Salle's  classic  adventure  on  the  Mississippi  River  in  1682,  and  our 
first  legal  document  is  a  proces  verbal  prepared  for  him,  at  or  near 


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Courts  and  Laio  in  CoUmiol  Louisiana  269 

the  present  site  of  New  Orleans,  in  authentic  form  before  Jacques  de 
Metaire,  a  notary  of  Fort  Frontenac,  Canada,  who  accompanied 
La  Salle  as  scribe,  and  for  the  purpose  of  executing  and  preserving  in 
due  and  permanent  shape,  according  to  law,  the  evidence  of  the 
discovery  and  taking  over  of  Louisiana  for  his  master,  the  King  of 
France.  That  docimient  is  just  as  modem  in  every  way  as  any 
proces  verbal  of  today,  or  as  any  other  act  of  like  nature  to  which 
we  lawyers  address  ourselves.  That  document  which  we  would  still 
call  a  proces  verbal  is  designated  as  a  proces  verbal  in  the  archives 
of  Paris,  and  it  is  also  an  authentic  act,  that  is,  one  executed  before  a 
notary,  signed  by  the  parties  making  it  and  the  witnesses  and  the 
notary. 

The  next  step  in  our  history  was  made,  as  everybody  knows,  with 
the  little  colony  at  Biloxi  under  Iberville.  For  the  period  from  1699 
to  1712,  thirteen  years,  this  beginning  of  Louisiana  was  governed  by 
a  hierarchy.  There  was  a  lieutenant  of  the  King  at  the  head  of  mili- 
tary- and  naval  affairs,  and  as  such  exercisir  g  the  functions  of  governor; 
a  conmiissioner,  who  was  a  civil  officer,  called  the  Conunissaire  Or- 
donnateur,  who  was  at  once  auditor,  treasurer,  storekeeper  and 
general  manager,  and  there  was  a  curfe  who  ran  the  ecclesiastical 
side.  That  was  the  first  government  that  we  are  taught  about  in 
Martin  and  Gayarre;  there  is  nothing  in  our  archives  to  indicate  the 
presenre  of  kw  courts,  or  a  judicial  department. 

Civil  govermienl  in  its  proper  understanding  began  in  Louisiana 
in  1712,  with  the  Crozat  grant  given  by  Louis  of  France,  who  con- 
stituted CroKt  the  overlord,  lessee  or  manager  of  the  colony  of 
Louisiana.  That  grant  is  intere  >ting  to  us  because  in  it  we  received 
the  Custom  of  Paris  as  bur  fundamental  law  and  the  two  things:  the 
establishment  of  civil  government  and  the  enactment  of  a  law  for  its 
guidance,  fix  the  date  at  which  the  history  of  our  legal  institutions 
must  always  begin.  From  this  p^int  of  view,  the  Custom  of  Paris 
is  the  cornerstone  of  the  civil  lav  of  Louisiana.  That  custom  was  in 
1712  a  written  law,  a  codification  begun  in  the  fifteenth 
century  and  completed  in  the  sixteenth.  The  redaction 
of  the  Customs  of  France  is  a  story  too  familiar  to  repeat  in  this 
presence,  but  a  word  must  be  said  about  this  particular  codified 
custom,  whose  influence  still  persists  in  our  law.  Prior  to  the  period 
when  the  King  concentrated  the  might  of  France  under  the  regal 
power  Paris  was  a  duchy  or  county  extending  over  a  wide  area  of  which 
the  city  was  only  a  part.  Its  original  law  was  tribal  and  these  cus- 
toms had  in  time  been  subjected  to  Roman  influences  and  to  the 
customs  brought  in  by  the  Germanic  irruption.    These  in  turn  had 


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660  The  Louisiana  Historical  Qimrterly 

been  subjected  to  the  regulations  and  nec!essitie&of  a  busyand  teem- 
ing population  divided  into  guilds' cm-  clan^.  In  time  the  Custom  of 
Paris,  or  law  of  Paris,  came  to  be  regarded  as  tbe  rule  or  right  of  all 
those  who  were  not  contrdled  by  ecclesiastical,-  military  olr  feudal 
laws.  The  people,'  the  common  people,  did  not' wholly  escape  these 
last-mentioned  laws;  indeed,  the  first  sections  of  the  Custom  as 
redacted  pres^erved  a  tody  of  law  concerning  fiefs  and  feudal  rights 
Which  fortunately  did*  not  gain  foothold  in  Louisiana,  principally 
because  in  1719  the  ground  was  swept  itom  under  them  by  the 
provision  irlthe  charter  of  the  Company  of  the  West- authorizing  the 
grant  of  land  in  Louisiana  in  franc  aku,  allodially,  and  also  because 
the  adventurers  who  colonized  under  that  grant  escaped  the  possi- 
bility of  a  feudal  creation  of  baronnies  and  duchies  which  was  con- 
templated in  the  large  gifts  Or  divisions  of  the  new  cotmtry  which 
marked  the  beginning  of  that  company,  but  which  were  sterilized, 
one  might  better  say  nullified,  by  the  financial  impoverishment  re- 
sulting from  the  downfall  of  Law  and  the  bursting*  of  the  Mississippi 
Bubble.    ^  '  .       '  r  •         .    . 

This  Custom  of  Paris,  as  it  was  received  and  enforced  in  Louis- 
iana, was  a  code  divided  into  sixteen  titles  andcontaining  three  hun- 
dred articles-  I  have  not  time  here  to  follow  the  particulars  treated 
in  it.  but  I  must  notice  that  in  its  third  and  fourth  titles  it  treats  of 
movables  and  immovables* and  the  disturbances  of  real  rights,  in 
language  and  definitions  that  we  find  repeated  in  the  Code  Napoleon 
and  in  our  own  code.  In  title  fifth  you  will  find  the  germ  of  that 
part  of  our  Code  of  Practice  dealing  with  actions^  real,  personal  and 
hypothecary,  and  the  rules  regulating  the  joinder  of  isdue  and  pleas 
in  compensation  and  reconvention.  The  sixth  title  handles  prescrip- 
tion, and  here  again  the  Civil  Code  of  Louisiana  recalls  the  student 
to  these  origins.  The  eighth  title  may  be  found  scattered  in  many 
provisions  of  our  codes;  the  pledge  of  the  landlord  on  the  goods  of  the 
lessee  is  only  one  of  many  easily  recognized  sources  of  our  law.  But 
I  must  move  faster,  noting  only  the  fascination  which  you  will  find 
in  the  titles  on  servitudes,  on  community  of  acquets  and  gains,  on 
dower,  on  tutorship,  on  donations  inter  vivos,  on  wills  and  testaments, 
on  successions  and  on  seizures  and  sales;  and  here  in  this  last  title 
we  see  the  executory  process  in  its  first  shape,  so  perfectly  elaborated 
later  in  O'Reilly's  Code.  In  truth,  a  book  could  and  should  be  writ- 
ten by  some  of  you  comparing  this  Custom  of  Paris  with  our  own 
codes ;  a  work  you  should  undertake  to  pay  your  debt  to  the  profession ; 
it  will  bring  you  no  financial  gain,  but  you  would  have  splendidly 
paid  that  debt  we  all  owe  to  our  mother — the  law. 


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Courts  and  Law  in  Colonial  Louisiana  261 

In  Paris,  in  1712  and  for  a  century  before  that  date,  the  Custom 
was  administered  by  a  law  court  called  the  Presidial  Seit  ard  Court 
of  the  Chateiet,'to  which  I  will  presently  recur,  so  that  when  Louis 
XIV  extended  this  Custom  to  us,  the  gift' carried  a  law  and  a  prac- 
tice, a  law  arid  the  judicial  construction  thereof  extending  over  One 
and  perhaps*  two  centuries.  'The  gift  also  carried  freedom  from  the 
shackles  of  any  Other  system:  military,  feudal  and  perhaps  ecclesias- 
tical, but  of  this  laist  we  cannot  be  sure  until  the  archives  of  the  Cathe- 
dral and  of  the  Holy  Church  elsewhere  can  be  consulted.  However, 
our  civil  law  wa^  here  contained  in  easily  understood  limits  and  save 
that  then  atifd  thereafter  the  ordinances  of  the  Kin^  were  of  equal 
force,  We  were  free  within  this  law,  oiir  law,  the  French  law  of  Louisi- 
ana. But^  this'in  ho  wise  minimizes  the'  force  and  effect  of  those 
ordinances  which  hold,  on  the  contrary,  a  high  place  at  the  sources 
of  our  law,  as  yoii  will  see  in  W.  K.  Dart's  Louisiana  Judicial  System, 
1  La:  Digest,  pa^e  13.  - 

With  the  grant  of  the  Custom  of  Paris  there  was  created  for  it« 
adhiiilistration  the' first  law  court  in  LOui^i-lna,  called  the  Superior 
Council.  It  U-as  established  for  three  years,  made  up' of  a  lawyer 
who  was  the  First  Councillor  or  Presiding  Judge,  arid  an  Attoiney 
(or  Procuretir)  Genial,  who  Was  at  once  the  lawji^rof  the  people 
and  the  legal  advisef  Of  the  government.  The  remaining  mtoibers 
of  the  Superior  Cx)imcil  were  laymen.  This  court  was  granted 
jurisdiction  over  all  Louisiana,  aiid  in  1716  it  was  made  a  permanerit 
establishnient.  Upott  the  passing  of  the  Crozat  regime  in  1717  the 
Company  of  the  West  became  masters  of  the  colony.  The  Superior 
Coxmcil  was  reorganized  in  1719,  and  thenceforwaW  Louisiana,  had 
at  all  times  this  court  administered  by  a  lawyer  acting  as  its  First 
Councillor  or  Presiding  Judge,  assisted  by  the  Procureur  General, 
who  represented  both  the  people  and  the  government.  This  court 
followed,  in  pleading  and  practice,  the  forms  prevailing  before  the 
court  of  the  Chatelet  in  Paris;  doubtless  they  were  installed  here 
imder  the  supervision  of  the  first  Attorney  General  of  whom  we  have 
any  record,  who  was  Sieur  Chartier  de  Baune.  He  was  appointed  in 
1719  with  the  statement  in  the  ordinance  covering  the  Superior 
Council  that  he  had  been  a  Councillor  of  the  Presidial  Seat  and  ol 
the  court  of  the  Chatelet  of  Paris,  and  it  was  probably  because  of 
this  experience  that  he  was  sent  to  Louisiana  to  install  in  our  court 
the  Custom  of  Paris,  and  to  set  our  legal  machinery  in  motion. 

I  have  seen  a  contemporary  commentary  on  the  Custom  of  Paris 
with  special  reference  to  the  practice  and  jiuisdiction  of  the  court 
of  the  Chatelet.    This  was  one  of  the  oldest  law  courts  in  France;  it 


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262  The  Louisiana  Historical  Quarterly 

was  served  by  many  judges,  called  Coxincillors,  and  it  survived  until 
the  French  Revolution.  In  the  light  of  this  commentary,  and  the 
pleadings  found  in  these  old  records,  I  am  convinced  we  took  our 
pleading  system  of  that  period  from  the  forms  then  in  use  in  the 
court  of  the  Chatelet  in  Paris,  which  in  turn  followed  the  Code 
Louis  or  Ordinance  of  1667  on  Civil  Procedure;  those  pleadings 
themselves  heing  then  and  thereafter  the  most  simple  statements 
of  the  matters  in  issue.  Having  been  devised  for  the  common  people 
of  France  they  were  never  confused  with  the  forms  of  pleading 
prevalent  in  other  jurisdictions.  In  brief,  these  old  records,  gentle- 
men, would  seem  to  establish  the  proposition  that  during  the  entire 
French  period  the  Custom  of  Paris  was  our  sole  law,  never  departed 
from,  save  where  ordinances  of  the  kings  qualified  or  overrode  it. 
The  sole  legislator  in  those  days  was  the  king.  All  edicts  ran  "we" 
and  all  signatures  **me,'*  seldom  **Louis,'*  but  nearly  always  **moi." 

Chartier  de  Baime,  the  first  Attorney  General,  the  man  who 
apparently  brought  in  the  method  of  pleading  and  practice  imder 
the  Custom  of  Paris,  also  gave  us,  according  to  our  records,  our  first 
criminal  prosecution.  He  had  hardly  landed  in  New  Orleans,  which 
had  then  not  beccme  the  capital,  when  two  roving  soldiers  of  the 
Marine  Detachment  there  established  took  a  liking  to  his  linen  and 
raided  his  establishment,  and  in  due  course  were  arrested  and  prose- 
cuted. The  indictment  says  that  the  Attorney  General  recused 
himself,  end  called  in  the  Town  Major  of  New  Orleans  to  prosecute 
in  his  stead.  That  f  rst  criminal  prosecution  in  our  records  is  in  the 
shape,  however,  of  a  court-martial,  hecause  the  men  were  soldiers, 
but.  the  forms  they  followed  are  forms  prescribed  by  the  Criminal 
Ordinance  of  Louis  of  1670. 

In  due  course  of  events  one  of  the  poor  wretches  was  acquitted, 
c  r  rather,  it  was  held  that  the  deed  had  not  been  proven  on  him;  but 
the  other  was  condemned  to  be  flogged  by  a  negro  at  the  foiu*  comers 
cf  the  'Tillage,  and  thereafter  to  ser\e  time  three  years  as  a  convict 
of  the  company,  wherever  it  saw  fit  to  send  him.  As  the  record  in- 
dicates it  is  probable  the  Sieur  Chartier  de  Baune  suffered  a  trifling 
loss,  it  is  evident  our  early  forbears  did  not  temper  justice  with 
mercy,  notwithstanding  they  were  in  a  wilderness  where  human 
sympathy  might  be  expected  to  control  the  stringent  criminal  laws 
of  the  old  world. 

At  this  period  Louisiana  was  ruled  by  the  Company  of  the  West, 
and,  strange  to  say,  not  by  the  king  of  France.  It  controlled  Louis- 
iana from  1717  to  1732.  The  company  named  the  judges  and  indeed 
named  all  local  officers.     The  king  merely  confirmed  the  appoint- 


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Courts  and  Law  in  Colonial  Louisiana,  26S 

ments  or  recommendations  as  the  edict  called  this  privilege.  All  legal 
process,  however,  ran  in  the  name  of  the  king  and  was  sealed  with 
the  king's  seal,  but  this  was  in  accordance  with  the  tenor  of  the  com- 
pany's grant. 

Turning  again  to  our  doamients  of  the  French  period,  we  find 
that  the  judicial  system  of  1719  and  thereafter  was  this  Superior 
Coimcil,  a  working  court  of  five  to  seven  members,  two  of  them 
lawyers  and  the  remainder  laymen.  This  principle  of  a  mixed  tri- 
bunal was  never  changed  in  French  times,  but  the  membership  was 
sometimes  reduced  or  enlarged  either  by  the  council  itself  or  by 
decree  of  the  king.  The  ordinance  under  which  they  operated  was  a 
flexible  charter  or  constitution  covering  every  detail,  but  leaving 
much  to  the  judges,  including  the  fixing  of  costs.  We  have  found 
in  our  records  three  ordinances,  edicts  or  decrees  of  Louis,  king  of 
France,  relating  to  the  Superior  Coimcil  of  Louisiana.  These  ordi- 
nances or  edicts  have  never  been  discussed  in  any  history  of  Louisiana. 
We  have  caused  them  to  be  printed  in  translation,  and  to  you  stu- 
dents, who  may  be  interested  in  such  things,  we  commend  specially 
the  1919  and  1920  volimies  of  the  Louisiana  Historical  Quarterly, 
which  has  printed  these  edicts  and  other  material  from  otu-  archives. 
The  edicts  particularly  are  perfect  specimens  of  the  draftman's  skill, 
well  co-ordinated  and  carefully  prepared,  mwe  so  perhaps  than  our 
laws  of  the  present  day.  These  documents  constitute  the  first, 
second  and  third  judiciary  acts  of  Louisiana,  but  they  are  really  one 
law,  remodeled  and  re-enacted. 

The  pleadings,  as  I  have  told  you,  were  drawn  in  the  most 
simple  shape.  Take  one  of  them  as  an  illustration,  a  petition  to  open 
a  succession.  It  is  addressed  to  their  Lordships  of  the  Superior 
Coimcil.  Then  comes  the  petitioner's  name  and  occupation;  he 
* 'humbly  petitions";  there  follows  then  a  recitation  in  a  few  words 
of  the  matter  which  he  is  submitting  to  the  court,  and  that,  in  turn, 
is  closed  with  a  prayer  for  such  relief  as  he  desires,  or  for  such  relief 
as  the  court  may  grant.  In  other  words,  this  document  which  I  am 
describing  to  you,  dated,  say  1719  or  1732,  it  makes  no  difference 
which,  followed  one  unvarying  form,  the  petition  for  relief  that  has 
been  common  in  Louisiana  for  two  hundred  years;  the  form  Was 
employed  in  all  proceedings,  whether  for  legal  or  equitable  relief,  in 
probate  and  in  civil  matters  of  every  description. 

The  petition  was  written  out,  as  a  rule,  by  the  clerk  of  the 
Superior  Council.  This  official  was  one  of  the  most  important  men 
in  old  Louisiana.  That  office,  it  is  believed,  was  bought  and  paid 
for,  and  he  seems  to  have  held  it  for  life.    One  of  them,  feeling  the 


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264  The  Louisiana  Historical  Quarterly 

grip  of  death  upon  him,  bargained  it  away  fpr  a  price  represented  by 
the  note  of  the  would-be  successor.  On^  of  the  contemporary  law- 
suits of  that  period  is  a  suit  by  this  purchaser  against  the  ex-clerk's 
estate.  The  plaintiff  got  back  his  note  because  the  Superior  Council 
had  refused  tp  recognize  the  sale,  although  th^  djBcedent  had  paid 
for  his  office;  they  held  it  was  not  assignable,  and  the  power 
that  gave  it  had  a  right  to  sell  it  again  to  the  next  comer. 

As  I  have  said,  this  clerk  of  court;,  either  by,  himself  or  through 
a  deputy,  wrote  the  petition  or  complaint.  Ther^  were  no  lawyers 
in  Louisiana  in  those  days,  except  those  two  paid  mei),  the.  First 
Councillor  and, the  Procureur.  Having  a  cause  of  action,  J  stepped 
into  the  office  of  the  Procureur  or  Attorney  General,  whose  duty  it 
was  to  advice  me  as  well  as  the  State.  He  probably  passed  me  over 
to  the,  clerk,  .and. the  clerk  in  turn. wrote  my  cause  of  action  and  I 
signed  it,  or  if  I.  could,  not  s}ga.  I  made  my  mark,. and. the  clerk 
signed  as^a  witness  with  me.  If  it  was  ^n  i^ne  of  fact  or  matter  of 
any  kind  that  required  attention,  the, First  Councillor  endorsed  at 
the  foot  of  it,  that  is,  the  judge,  endorsed  Jiis.  permission  to  i&Je  it — the 
clerk  does, not  seem  to  have  bad  that  right.  And  by  the. way,  that 
permission  is  .a  form  that,  in  part  has  come  doyn  to  u^  even  upto  the 
present  day.  I  will  read  you  one  such  .order  from  1730,  endorsed 
upon  a  petition,  which  ^sked  fpr  citation:       -, 

,  '  •  •  /      ■    .  '•      .  ■•    .    /  ■ .  ,   . 

,    ,    .        **Scit  signifie  .et,  assigne  au  delay  de  Vordoi^napce.  a  la 
Nouvelle-Crleans  le  13  Fbr.  1730/*         . 

which,  roUghly' translated',  runs:  '  .  •     ,    .    . 

^     *-Let,thq  defendant  be  notified  to  appear  beforie  us  within 
.the  delay  of  the  ordinance.*',  .     , 

**Let''  still  remains  the  first  word  in  most  of  our  orders. 
.  The  ordinance  referred  to  in  this  order  is  the  civil  ordinance  of 
Louis,. promulgated  in  ^667  like  the  criminal  one  of  which  I  have 
already  spoken .  in  1670.  As  English-speaking  people,  who  have 
largely  forgotten  the  tongue  of  our  ancestors,  it  seems  as  nothing  to 
speak  of  these  ordinances  of  1667  and.  1670,  but  they  were  important 
laws  of  that  period.  If  you  will  brush  up  your  French  and  read  them 
I  promise  you  an  interesting  session,  a  subject  of  information  as  well 
as  an  introduction  to  ancient  legal  remedies  in  Louisiaxi^.. 

The  petition  having  been  filed  and  the  order  having  been  ren- 
dered for  its  service  and  for  the  defendant's  appearance,  the  huissier 
or  sheriff  of  the  court  then  took  it  to  the  other  party  anc}  read  the 


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Courts  and  Law  in  Colonial  Louisiana  265 

original  to  him  and  served  a  copy  vipon  him.  He  endorsed  upon  the 
original  a  return,  the  typical  if-eturn  of  the  sheriffs  of  Louisiana  today. 
In  effect  he  says,  **I  certify  that  I  took  the  petition  and  the  order  in 
this  case  to  John  Smith,  merchant  (or  planter  or  laborer),  at  his  house 
(or  farm  or  shop,  giving  its  location);  that  I  read  to  him  the  contents 
of  this  petition,  in  order  that  he  might  not  say  hereafter  that  he  did 
not  know  what  it  was,  and  that  I  then  left  a  copy  of  the  same  with 
him.  In  testimony  of  all  of  which  I  am  making  and  signing  this 
return.'*  The  defendant,  haled  into  court  by  this  process,  iminediate- 
ly  went  to  the  procureur  or  to  the  clerk  and  told  him.  what  his  defense 
was»  and  the  clerk  wrote  it  out  in  similar  fashion,  addressed  to  their 
lordships  of  the  council.  So-and-So  **humbly.  petitions/'  etc.,  set- 
ting forth  his  defense,  and  that,  in  turn,  is  endorsed,  'Xet  it  be  filed,'* 
and  the  case  is  at  issue,  and  the  hearing  follows  immediately." 

In  all  the  records  thus  far,  I  do  not  find  lany  evidence  of  the 
formahties  of  a  trial*  I  imagine  it  was  a  dignified  l^ut  also  ananformal 
proceeding.  These  five  laymen  and  two  lawyers  sat  around  the  table 
and  there  he^d  their  friends  and  neighbors  who. were,  involved  in 
this  quarrel,  and  they  decided  it  then  and  there;  .but- where  a  case 
was  serious  each  side  presented  his  views  in  writing;  written  also  by 
this  wonderful  clerks.  It  may  fee  too  that' this  was.  their  ;way  oif  pre- 
senting the  evidence  in  the  case.  The  clerk,  seemst  to  have  prepared 
the  version  of  each  side  with  equal  impartiality. .  I  ought  to  add  that 
the  ProcUreur  General*  sometimes  >prepared  one  of.  these  statements, 
and  if  he  did  the  clerk  generally  wrote  the  other  one.:  ■ 

In  the  edict  of  1716  the  judges  were  required  to  have  three  of 
the  Superior  Council  agree  in  all  decisions  in  civil  caser^' and  five  to 
agree  in  all  criminal  cases;  and  this  provision  rxms  through  all  the 
edicts/  The  court  must  also  have  teem  required^  by  some  ^rule  we 
have  not  fdund.  to  state- its  reasom  for"  judgment,  because  all  judg- 
n:ents  of  this  arcieit  period  all  f tart  off  very  much  like  the  report 
in  the  Journal  de  Palai^--'*Co!?(iiering,-'  ** whereas, *'  etc^  Due  to 
this  prrctice  it  is  possible  in  every  case  decided  in  French  colonial 
times  to  find  something  to  indicate  what  it  is  all  about;  wherever  a 
scrap  o^  the  record  has  survived.  .      »    , 

There  was  no  expense  to  the  Utif:ants,  for  judges  or  lawyers; 
in  that  respect  justice  was  free  i^;  French  Louisiana.  The  only  costs 
that  enybody  paid  was  the  clerk's  and  possibly  the  sheriff's  expenses 
which  Vvere  fixed  by  the  court  from  time  to  time,  and  taxed  in  the 
margin  of  the  register  of  the  court.  , 

I  have  found  in  these  •  old  records  innumerable  wills.  The 
olographic  will  as  we  draft  it  tckiay  in  our  offices  and  execute  in  cour  t 


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266  The  Louisiana  Historical  Qtiarterly 

without  trouble  was  a  familiar  thing  in  that  ancient  day.  Most  of 
of  them  start  with  the  consignment  of  the  soul  to  God  and  the  Saints, 
followed  by  **I,  So-and-So,  etc.,"  and  they  close  with  "All  written 
and  done  in  my  own  hand."  The  nuncupative  will  by  public  and 
private  act  is  also  very  common  in  those  records,  and  hardly  distin- 
guishable from  the  form  we  now  follow.  It  could  be  and  was  executed 
before  the  curi,  before  the  judge  or  before  the  clerk,  and,  in  the  ab- 
sence of  those,  before  three  or  five , citizens  or  inhabitants  cf  the 
place.  When  they  came  to  presenting  these  documents  for  proof  and 
probate,  the  clerk  and  the  judge  used  the  same  forms  that  we  now 
use  almost  identically.  The  nuncupative  will  which  was  executed 
before  the  curi  or  judge  was  probated  without  any  other  formality, 
because  when  it  was  executed  it  was  turned  into  the  Superior  Council 
archives;  that  was  considered  a  filing  of  that  will.  I  have  found  no 
case  of  such  a  will  that  did  not  primarily  and  at  once  go  into  the 
records  of  the  Superior  Coimcil.  It  is  probable  that  we  will  find 
differences  in  the  methods  of  making  and  probating  wills  as  we  study 
the  later  periods  of  the  French  era.  The  Custom  of  Paris  no  doubt 
governed  luitil  the  changes  made  by  the  ordinances  of  1731  and  1735. 
Indeed  this  applies  to  all  our  legal  studies  in  this  period. 

These  archives  are  full  of  marriage  contracts,  and  these  are  ex- 
tremely interesting,  particularly  in  reference  to  the  commimity 
and  to  marital  donations.  There  are  emancipations;  innumerable 
successions;  appointments  of  executors;  qualifications  of  tutors. 
One  singular  thing  that  I  notice  is  that  there  was  no  under-tutor,  but 
there  was  a  curator  ad  litem.  A  female  child  up  to  twelve  years  of 
age  and  a  male  up  to  fourteen  had  a  tutor;  after  that  they  had  a 
curator  ad  Hies  or  ad  bona,  who  was  charged  with  the  child's  affair's. 
Tutorship  before  puberty,  curatorship  thereafter,  was  the  rule,  and 
this  system  was  perpetuated  in  the  Code  or  Digest  of  1808.  This 
rule,  it  is  believed,  was  derived  directly  from  the  Custom  of  Paris. 
Whether  tmder-tutorship  came  in  later  and  before  the  French  period 
ended  we  have  not  yet  discovered.  They  had  the  family  meeting 
composed  of  five  relatives  and  friends,  and  there  are  the  same  allega- 
tions in  the  petition  of  propinquity  of  relationship,  and  connection 
and  as  to  friends,  etc.  The  form  is  almost  exactly  as  we  do  it.  The 
proces  verbal  advises  the  belief  of  the  fanrily  meeting  that  the  thing 
sought  to  be  done  is  for  or  ? gainst  the  best  interest  and  welfare  of  the 
child,  and  when  their  deliberations  were  closed  the  proces  verbal  was 
carried  before  the  judge  and  homologated  just  we  as  do  it  today. 

In  short,  gentlemen,  if  any  of  those  leained  officials,  my  friend 
Garic  for  instance,  because  I  have  become  intimately  acquainted 


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Courts  and  Law  in  Colonial  Louisiana  267 

with  him;  nay.  friend  Qaric,  clerk  of  the  Superior  Council,  if  he  could 
wake  up  frorat  his  long  vsleep  and  return  to  now-a-days  and  get  the 
dust  out  of  his  eyes,  and  pick  up  his  quill  pen,  he  cculd,  after  two  rr 
three  hours  reflection,  begin  to  write  our  petitions  and  judicial  pro- 
ceedings all  over  again,  even  as  he  did  in  1721;  there  would  be  no  real 
difficulty,  either  with  the  judge  or  the  procureur  or  with  the  forms 
in  probate  matters  and  in  pleadings  and  methods  of  practice  and 
delays  and  citation,  service  and  return  and  the  different  processes 
and  writs  (orders)  of  execution,  etc.  All  those  things,  oiu-  friends  of 
that  day,  if  they  could  return  to  earth,  would  be  able,  with  very  little 
preparation,  to  resume  as  of  yore. 

These  French  legal  ancestors  had  also  the  business  character- 
istics of  some  of  our  brethren  of  today.  For  instance,  the  first  suc- 
cession we  find  opened  was  that  of  a  captain  of  marines,  who  died 
on  Dauphine  Island  in  1717,  at  two  o'clock  in  the  morning.  Some- 
body notified  the  clerk  of  the  council  or  the  procureur  that  he  was 
dead.  The  proces  verbal  says  that  within  the  ensuing  hour  they  had 
affixed  the  seals  upon  his  property.  They  described  how  they  did  it, 
with  great  particularity.  They  adjourned  for  his  funeral,  but  after 
his  funeral  they  made  an  inventory,  etc.,  and  all  those  proceedings 
are  exactly  as  we  carry  them  out  today,  affixing  the  seals,  making 
the  inventory,  description  of  the  goods  and  property,  etc.,  but  an 
appraisement  seems  not 'to  have  been  a  part  of  the  duty.  Thereupon, 
ha\'ing  made  the  inventory,  the  man's  will  is  produced;  he  names 
the  major  of  his  regiment  as  executor,  who  promptly  declines;  a 
dative  executor  is  appointed  without  further  formality,  and  there 
aft^r  all  the  effects  of  the  succession  are  sold  at  public  auction  by 
drum  beat  on  the  Island,  and  the  proces  verbal  recites  that  notice 
was  given  by  beating  the  drum  and  calling  upon  the  inhabitants 
of  the  Island  to  assemble  at  a  certain  place,  and  that  they  did  assem- 
ble, to- wit:  that  the  majority  of  the  inhabitants  were  at  the  place 
when  the  selling  began.  Not  of  any  legal  interest,  perhaps,  but 
this  document  is  a  human  one,  just  to  show  you  how  a  gentleman 
of  that  period,  a  bachelor,  lived  in  his  bachelor  quarters;  he  was  an 
officer  of  the  army  and  a  major  by  brevet,  and  a  captain  of  marines. 
It  shows  how  he  lived,  because  the  Uttle  room  and  outroom  of  his 
house  is  described,  with  its  windows  and  door  and  its  furniture 
and  coverings;  it  shows  how  he  dressed,  because  his  vest  and  his  long 
breeches  and  short  breeches  are  described,  and  the  various  other 
things  that  he  wore  and  used  are  all  set  out  in  minute  detail;  and  the 
proces  verbal  of  s^le  shows  what  those  things  were  worth.  I  would 
like  to  say,  as  illustrating  the  way  they  lived  in  those  early  days. 


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268  The  Loumana  Hiatarical  Quarterly 

those  who  have  so  long  since  gone  to  the  Happy  Hunting  Grounds, 
that  there  were  foimd  among  his  effects  several  grades  and  qualities 
of  brandy  and  wine,  white  and  red,  and  quite  a  lot  of  it,  and  when 
these  were  sold,  there  was  very  active  competition  for  them.  There 
was  evidently  no  prohibition  in  the  Island  of  Dauphine! 

We  have  not  foimd  as  yet  anything  of  special  interest  regarding 
the  first  judge,  who  was  Sieur  Hubert.  His  name  figures  all  through 
the  early  French  records,  however,  and  it  may  be  when  we  get  deeper 
into  it  they  will  tell  something,  or  some  future  student  may  find  and 
tell  us  something  about  him.  He  was  the  first  judge,  just  as  Sieur 
Chartier  de  Baune  was  the  first  attorney  general  or  procureiw. 

The  jurisdiction  of  the  Superior  Council  was  original,  and  at  t^e 
beginning,  exclusive  and  final.  It  possessed  civil  and  criminal  juris- 
diction, and  was  besides  the  only  court  in  Louisiana.  At  the  posts, 
such  as  the  Opelousas,  where  my  distinguished .  friend  here  present 
lives,  there  was  a  local  commander  who  acted  as  judge  and  conserva- 
tor of  the  peace,  but  if  litigation  or  trouble  of  any  kind  arose  there 
his  sole  fimction  was  to  take  the  testimony  and  forward  it  from  that 
place  to  the  Superior  Council  sitting  in  New  Orleans,  which  proceeded 
to  decide  the  case.  In  New  Orleans,  as  we  have  shown,  the  issues 
were  tried  orally  without  reducing  the  evidence  to  writing.  Toward 
the  end  of  the  French  pericd  local  judges  were  appointed  at  the 
posts  with  power  to  decide,  subject  to  appeal  to  the  Superior  Council, 
without  bond.  But  the  crdinance  provided  that  the  successful  liti- 
gant could  enforce  the  judgment  by  giving  bond  to  abide  the  result 
of  the  appeal.  There  seems  to  have  teen  no  method  of  suspending 
the  execution.  This,  too,  is  said  with  reservations.  The  actual 
operation  may  have  teen  changed,  tut  so  far  we  have  found  nothing 
either  way. 

While  there  was  no  appeal  from  the  judgment  of  the  Superior 
Coimcil,  we  find  that  the  Council  of  State  at  Versailles  exercised  a 
right  of  review.  In  a  printed  brief  of  the  later  French  period  in  our 
records  it  would  appear  the  method  of  invoking  this  relief  was  akin 
to  our  catiorari,  mandamus  and  prohibition.  Among  litigants  at 
the  close  of  that  era  one  of  the  most  frequent  names  is  Etienne  de 
Bore,  who  seems  never  to  have  lost  a  case  without  exhausting  this 
remedy,  and  the  notice  that  he  gives  of  his  intention  to  apply  therefor 
is  not  unlike  our  own  notices  in  similar  cases.  In  the  brief  just  men- 
tioned the  argimient  indicates  that  the  Council  of  State  could  te 
appealed  to  only  against  usurpation  of  jurisdiction  or  clear  refusal 
to  follow  the  ordinances  or  because  of  conflict  in  the  same.  The  his- 
tory of  French  law  tells  us  that  the  Council  of  State  was  at  once 


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Courts  and  Law  in  Colonial  Louisiana  269 

the  Privy  Council  of  the  king,  and  the  Court  of  Courts  in  France. 
It  could  halt  the  parliaments  for  instance,  but  it  is  added  that  its 
interferences  with  the  higher  courts  was  very  infrequent.  It  would 
appear  also  that  when  the  relief  was  granted,  the  whole  case  was  re- 
examined. 

Perhaps  the  most  curious  feature  of  these  old  archives  is  the 
occasional  criminal  record.  One  full  and  complete  file  covers  a 
murder  in  Natchitoches  jiist  before  Spain  took  over  the  colony. 
The  accused  was  arrested  in  Natchitoches  and  sent  down  to  New 
Orleans,  where  chains  were  put  upon  him  and  he  was  immured  in  the 
dungeon.  The  proceedings  against  him  are  started  by  the  attorney 
general,  ver^"^  much  like  it  would  be  done  today  by  the  district  attor- 
ney. It  was  called  an  * 'information."  Mr.  Pain,  (some  of  you 
may  be  interested  in  hearing  that  name\  is  designated  as  the  judge 
in  Natchitoches  to  hear  testimony  upon  this  prosecution.  The 
accused  remained  in  jail.  He  was  not  even  served  with  a  copy  of  the 
indictment.  He  did  not  know  what  he  was  there  for,  unless  his 
conscience  afflicted  him.  In  the  meantime.  Judge  Pain  sat  in  Natchi- 
toches and  simmioned  and  examined  all  the  witnesses,  and  he  trans- 
scribed  all  the  testimony,  without,  however,  indicating  his  own 
finding  or  opinion.  This  was  returned  to  the  Superior  Council  in 
New  Orleans,  where  a  confrontation  occurred,  namely,  one  of  the 
judges  of  the  Council  visited  the  accused  in  his  dungeon  and  con- 
fronted him,  not  with  the  indictment,  not  with  the  testimony,  but 
with  the  testimony  of  the  principal  witness  who  testified  to  the  time, 
the  place,  ?.r.d  the  physical  blow.  This  was  the  testimony  of  a  woman 
who  saw  the  blow  which  caused  the  death.  Her  testimony  was  read 
to  the  man  in  the  dungeon,  and  he  is  categorically  asked  to  say  if 
it  is  true  or  rot  true,  and  his  reply  was  taken  down.  He  answered 
that  the  woman  was  a  fool;  that  she  was  under  the  influence  of  his 
enemies;  that  she  had  never  seen  the  affair,  in  all  of  which  he  was 
without  volition,  because  he  had  no  privilege  to  refuse  to  answer;  he 
was  compelled  to  answer  categorically  because  the  ordinance  under 
which  he  was  prosecuted  so  required.  Having  denied  categorically 
at  this  confrontation  the  testimony  of  the  prosecuting  witness,  that 
witness  was  called  down  from  Natchitoches,  where  she  resided,  and 
the  accused  was  brought  into  the  courtroom  frcnn  his  dungeon.  The 
report  says  his  chr  ins  were  taken  off,  and  he  stood  free  of  his  tackles, 
but  he  was  put  on  the  criminal  chair  or  bench,  and  there  in  his  pres- 
ence, the  accusing  witness*  testimony  was  read  to  her  and  she  v^zs 
again  asked,  **Is  this  the  man  and  is  this  true?"  and  she  said  it  was. 
He  was  allowed  no  questions  to  her.     The  presiding  judge  asked 


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270  The  Louisiana  Historical  Quarterly 

some  questions  and  the  proces  verbal  says  that,  having  reiterated 
her  testimony,  the  accused  ^^as  remanded  to  thie  jail  and  the  case 
set  down  for  trial.  Well,  in  due  course,  the  fellow  was  tried,  that  is, 
his  case  was  heard  before  the  Coimcil,  where  he  was  ae:ain  questioned 
by  the  judge  and  in  due  course  convicted.  It  would  take  too  long  to 
tell  you  his  sentence,  but,  briefly,  he  was  condemned  to  be  taken 
from  his  cell  in  a  dirt  cart  and  to  be  carried  across  the  streets  and 
crossings  of  New  Orleans  to  the  place  of  execution,  labeled  with  a 
sign  that  he  was  a  murderer.  At  the  place  of  execution  he  was  to  go 
upon  his  knees  and  ask  forgiveness  of  God  and  of  the  dead  one  for 
his  mortal  sin  of  murder,  and  thereupon  he  was  to  be  broken  on  the 
wheel,  and  it  even  says  what  part  of  his  body  is  to  be  first  broken 
and  mutilated,  and  then  he  was  to  be  hung  by  the  neck  until  he  died. 
Subsequently,  and  shortly  after  they  reached  this  decision,  and  be- 
fore thfe  sentence  was  carried  out,  the  judges  modified  the  sentence, 
so  that  the  condemned  man  should  be  hung  first  and  broken  after- 
wards, a  veiV  tender  attention  on  the  part  of  his  judges.  This 
decree  bears  the  signatures  of  the  full  Council.  Below  it,  is  a  certi- 
ficate that  the  sentence  of  the  court  was  carried  into  execution. 
The  Place  d*Armes  was  the  usual  place,  in  fr6nt  6f  the  Cathedral, 
where  these  executions  were  conducted.  The  record  of  this  case  has 
been  translated  and  published  in  a  recent  number  of  the  Louisiana 
Historical  Quarterly, 

There  are  many  equally  interesting  cases  in  these  records,  one  of 
them  (1726)  involves  a  question  of  superior  and  inferior  rights  of 
drainage.  In  that  case  the  right  of  one  owner  to  dam  up  and  turn 
back  the  drainage  on  his  neighbor  was  beautifully  presented  in 
pleadings,  proofs  and  argument,  and  fortunately  the  whole  record 
is  there.  The  lo?er  was  ordered  to  undo  the  mischief  and  to  furnish 
slaves  and  lard  to  the  victim  ready  for  a  crop  to  be  prown  to  replace 
the  lo'^t  ore  This  case  was  presented,  heard,  decidCvl  and  execution 
satisfied  within  a  fortnight.  There  was  evidently  no  congestion  of 
the  dockets  in  French  times. 

I  submit  it  to  you,  gentlemen,  whether  archives  such  as  these 
are  rot  worthy  of  preservation;  whether  it  is  not  well  for  us  to  put 
them  where  students  can  examine  them  and  where  they  can  be  made 
the  subject  of  historical  investigation.  I  have  only  touched  the  mat- 
ter in  this  talk,  but  I  ?m  convinced  you  are  converted,  and  that  you 
believe  we  should  act  now  to  save  these  precious  remembrances  of 
our  French  legal  period. 


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Courts  and  Law  in  Colonial  Louisiana  271 

II. 
Spanish  Period 

The  legal  history  of  our  Spanish  era  is  almost  a  blank.  Little 
or  nothing  is  known  about  the  judicial  side  of  Spanish  times  in 
Louisiana.  We  are  entering  on  ground  here  that,  historically,  has 
never  been  plowed,  but  with  these  records  in  our  hands  we  can  sup- 
ply the  story.  These  Spanish  records  are  intrinsically  more  valuable 
than  the  French  archives,  for  the  Spanish  period,  colored  our  early 
codes  and  even  now  there  is  seldom  a  volume  of  Louisiana  Reports 
that  does  not  contain  some  case  that  discusses  old  Spanish  law. 

You  will  remember  France  ceded  Louisiana  to  Spain  in  1762, 
and  that  the  French  local  commander,  d'Abadie,  was  duly  advised 
thereof  by  his  King,  who  ordered  him  to  hold  the  colony  to  await 
the  demands  of  Spain  and  to  evacuate  and  withdraw  from  the  same, 
when  he  should  surrender  it  to  the  new  comer. 

Three  years  later  (1765)  Don  Antonio  de  Ulloa  appeared  in 
New  Orleans,  authorized,  as  we  now  know,  to  take  possession  for 
Spain,  under  the  terms  of  the  cession.  He  did  not  follow  the  letter 
of  his  instructions,  but  philandered  with  Aubry,  the  French  conmiand- 
er,  who  had  succeeded  on  the  death  of  d'Abadie.  Ulloa  did  not 
ezhibit  his  credentials  to  the  Superior  Council,  nor  did  he.  proclaim 
the  Spanish  rule.  On  the  contrary,  he  left  Aubry  in  office  and  in 
command.  The  French  Superior  Coxmcil  continued  to  fimction,  and 
indeed,  it  increased  (or  perhaps  usurped)  prerogatives  which  it  had 
not  previously  enjoyed,  drawn  on  or  urged  to  this  by  the  necessities 
of  the  situation.  The  people  turned  to  the  Council,  who  were  all 
Creoles  of  local  origin  and  interests,  rather  than  to  Aubry,  the  French- 
man, whom  they  had  begun  to  regard  with  suspicion,  and  justly  so, 
because  we  know  now  that  Aubry  had  taken  Spanish  pay,  and  was  in 
truth  disobeying  his  instructions,  which  looked,  as  I  have  said,  to  a 
complete  severance  of  himself  and  his  rule  upon  the  arrival  of  the 
Spanish  Commissioner  in  the  colony. 

Why  Ulloa  preferred  the  dexdous  course  pursued  by  him  remains 
one  of  the  inscrutable  mysteries  not  explained  by  his  own  apologio, 
subsequently  published  in  Spain,  nor  by  Gayarre's  labored  defense 
in  the  Spanish  section  of  his  history.  Through  Aubry,  the  Spaniard, 
Ulloa,  began  to  restrict  the  rights  of  the  people,  particularly  with 
reference  to  the  commerce  of  the  colony,  and  it  was  not  long  before 
there  was  a  popular  response.  The  Creole  had  no  particular  love  for 
the  Spaniard;  that  was,  perhaps,  only  contemporary  racial  ill-feeling, 
but  it  was  there  and  to  be  considered.    The  leaders  also  knew  and 


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272  The  Louisiana  Hiatorical  Quarterly 

feared  the  governing  principles  of  Spanish  colonial  rule;  they  be- 
lieved it  was  now  intended  to  reduce  them  to  the  position  of  other 
subject  races  of  that  kingdom;  they  felt,  in  their  persons  and  property, 
the  slow  strangulation  of  their  ancient  pri^  i'eges,  and  it  only  needed 
the  commercial  decrees  which  Aubry  promulgated  to  fan  the  spark 
to  flame. 

The  time  produced  the  leader,  though  Gayarre  would  have  it  the 
leader  produced  the  time.  A  Creole  held  the  French  King's  com- 
mission as  Attorney  General,  and  he  had  not  been  displaced  by 
inioa.  This  son  of  the  soil,  I^freriere,  soon  dominated  the  situation; 
under  his  lead  the  Superior  Council  increared  its  membership,  as  it 
had  a  right  to  do;  it  took  over  the  govemn^ent  of  the  colony,  expelled 
UUoa  as  an  intruder,  and  with  an  outburst  of  popular  applause 
they  settled  down  to  peaceful  enjo\Tr  ent  of  the  victory.  The  ensuing 
lassitude  is  explicable  only  on  the  theDry  that  the  movement  was  not 
supported  by  a  united  people,  or  that  the  leaders  were  afraid  to  com- 
mit the  issue  to  the  arbitrament  of  arms.  Whatever  the  cause,  this 
admirable  beginning  of  a  revolution  sank  to  the  level  of  an  "'etneute'* 
or  local  row.  In  due  course  O'Reilly  came  with  an  army  in  1769 
and  extinguished  French  and  Creole  rule  in  the  blood  of  the  leaders. 
A  change  of  government  was  decreed,  and  to  root  out  the  schism 
the  old  laws  were  abrogated  and  the  laws  of  Spain  brought  in.  The 
official  language  of  the  race  was  suppressed  and  Spanish  established 
in  its  place. 

This  peaceful  invasion  of  O'Reilly  in  short  rejected  the  rule  that 
prevailed  then  and  now  in  regard  to  conquered  peoples.  Not  only 
did  he  subvert  and  overthrow  the  government,  but  he  trampled  on 
the  law  and  the  rules  of  law  which  regulate  private  rights  in  such 
cases.  He  sought  even  to  eliminate  the  language  of  the  people,  and 
to  reverse  the  action  of  the  human  heart.  He  seemed  to  believe  he 
•could,  by  proclamation,  convert  a  French  Creole  into  a  loyal  Spaniard, 
unless  maybe  he  hoped  these  drastic  decrees  would  sink  the  native 
to  the  level  of  his  peons  in  Mexico. 

Before  making  these  changes,  however,  O'Reilly  had  devoted 
his  entire  time  to  the  prosecution  of  the  leaders  of  the  revolt.  This 
is  called  by  Gayarre  a  State  trial.  His  title  indicates  he  had  in  mind 
such  trials  as  they  were  conducted  in  the  early  English  periods, 
but  there  is  no  resemblance  here  to  any,  even  the  most  tyrannous 
and  bloody  Jeffrian  example  of  our  race.  Those  victims  were  tried 
in  the  open.  If  they  were  baited  and  brutally  handled,as  in  truth 
they  were,  it  was  done  in  a  courtroom  and  before  a  jury,  and  the 
world  heard  and  history  recorded  their  defense.    It  was  at  the  worst 


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judicial  tyranny  and  regal  oppression.  But  Lafreniere  and  the 
remainder  of  his  group  were  separated  and  immured  in  dungeons; 
they  were  secretly  examined  in  that  place  by  two  lawyers  brought 
from  Havana  to  conduct  the  "investigation,"  which  was  wholly 
after  the  Spanish  manner.  It  was  a  secret  inquiry,  the  witnesses 
examined  against  the  accused  (and  more  than  five-score  depositions 
were  obtained^  were  examined  secretly  and  under  instruction  not  to 
disclose  either  the  fact  that  they  had  testified  nor  the  substance  of 
their  testimony.  We  have  not  found  in  our  archives  the  record  of 
this  * 'trial,"  but  it  is  believed  it  is  still  extant  in  Spain.  Until  this  is 
found  we  are  entitled  to  doubt  whether  there  was  a  court  in  any  trial 
sense.  It  Is  probable  O'Reilly  was  the  sole  judge,  and  at  best  he  may 
have  been  attended  only  by  his  military  attaches*  It  is  sure  that  he 
alone  signed  the  judgment,  which  in  its  body  seems  to  rely  on  the 
ad\ace  or  concurrence  of  the  investigators  aforesaid. 

Gayarre's  report  indicates  the  accused  were  not  present  at  this 
*'trial."  They  were  convicted,  so  far  as  we  know,  by  a  decree  rendered 
out  of  their  presence.  Their  defense,  as  presented  by  Gayarre's 
pages,  does,  however,  raise  the  incident  to  the  dignity  of  a  State  trial. 
In  substance,  they  defended  themselves  on  the  grounds  just  stated 
by  me,  namely,  that  they  were  at  the  time  of  their  offense  French 
subjects,  living  under  French  law,  that  Spain  had  not  then  assumed 
sovereignty  over  Louisiana;  that  under  the  terms  of  the  cession 
and  under  the  instructions  of  their  King,  dominion  would  not  pass 
to  Spain  imtil  she  had  taken  physical  possession,  and  until  France 
had  withdrawn  her  representatives  and  her  soldiers.  In  brief,  that 
until  France  evacuated,  Spain  could  not  rule.  They  claimed  that 
their  offense,  if  any,  was  against  their  own  King  and  to  be  prosecuted 
and  decided  according  to  the  laws  of  France.  Without  delaying  you 
further  on  this  first  cause  celebre  of  Louisiana,  it  remains  to  be  said 
that  it  is  part  of  our  duty  as  Louisianians  to  bring  the  record  of  this  * 
trial  under  examination.  As  lawyers  it  is  our  duty  to  re-examine 
at  the  bar  of  history  the  legal  questions  presented  and  to  endeavor  to 
write  the  final  verdict.  Whoever  does  this  will  be  entitled  to  the 
gratitude  of  the  State. 

When  O'Reilly  had  soothed  his  official  soul  with  this  bloody 
assize,  he  proceeded  to  map  out  the  future  for  the  new  Spanish 
colony.  By  two  proclamations  (November  25,  1769)  he  abolished 
the  old  government  and  created  a  new  '^political  and  military"  unit 
which  he  called  the  Province  of  Louisiana,  and  promulgated  rules 
for  the  new  government  and  a  code  of  laws  for  the  people.  He  did 
not  differentiate  the  civilized  race  he  found  in  possession  in  any  re- 


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274  The  Louisiana  Historical  Quarterly 

spect  from  the  Indians  and  other  races  his  predecesk)rs  had  conquered 
in  America.  We  know  from  his  prdclamations  arid  from  the  records 
in  Spain  that  he  was  vested  with  power  to  alter  the  government,  but 
it  has  not  been  satisfactorily  shown  that  he  was  authorized  in  advance 
to  destroy  the  private  law  and  legal  rules  of  the  conquered  territory. 
The  subsequent  ratification  by  the  King  and  the  Council  of  the 
Indies  transferred  the  wrong  to  the  source  of  all  power  in  Spain  and 
the  question  is  intrinsically  intereisting  only  in  the  aspect  here  pre- 
sented. O'Reilb''  did  not  allege  any  such  right  in  himself.  I  mean 
in  his  proclamations,  and  we  must  assume  that  he  acted  on  his  own 
judgment  and  considered  it  within  the  scope  of  his  instructions  and 
within  his  general  powers  as  ''Governor  arid  Captain  General  of  the 
Province  of  Lx)uisiana." 

This  new  Spanish  colonial  unit  was  independant  of  the  other 
Spanish  colonies  in  the  sense  that  its  rulers  were  to  be  appointed  by 
the  King,  yet  the  Governor  of  I^uisiana  was  subordinated  to  the 
Governor  and  Captain  General  of  Cuba,  and  had  to  regulate  his 
conduct  by  orders  received  from  them,  particularly  in  political  and 
military  affairs.  The  power  of  the  Governor  within  the  limits  stated 
was  practically  supreme.  He  represented  the  person  of  the  King. 
Under  the  Governor  there  was  a  corps  of  officials,  and  each  principal 
officer  had  a  legal  adviser  for  his  own  guidance.  These  officials 
controlled  the  commerce  of  the  province,  and  managed  its  finances, 
but  as  to  the  latter,  they  were  in  turn  subordinate  to  the  Royal 
Hacienda  (Treasury),  which  regulated  the  tariffs,  taxes  and  other 
exactions,  and  controlled  the  general  income  and  expenditure  of  the 
province. 

Alongside  the  provincial  government,  O'Reilly  created  a  Munici- 
pal Council  for  the  City  of  New  Orleans  called  a  Cabildo,  a  form  of 
local  government  originating  in  Spain  and  extended  by  her  to  the 
larger  communities  in  her  several  colonies.  O'Reilly's  model  for  this 
Cabildo  is  declared  by  him  to  be  derived  from  the  provisions  of  the 
'' Recopilacion  de  las  Indias''  the  great  code  or  digest  of  the  laws  and 
regulations  enacted  by  Spain  during  the  preceding  centuries  for  the 
government  of  her  colonies,  and  for  the  management  of  their  people 
in  all  the  departments,  and  down  to  the  smallest  details,  of  life  under 
government,  but  while  every  section  of  the  ordinance  creating  this 
body  is  annotated  from  the  Recopilacion,  other  laws  of  Spain  are 
also  cited  as  the  sources  of  the  institution. 

This  Louisiana  Cabildo  has  a  legendary  and  an  actual  history, 
and  the  study  of  our  archives  may  settle  some  of  the  conflicts  be- 


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Courts  and  Law  in  Colonial  Louisiana  275 

tween  legend  and  fact,  particularly  as  to  the  part  it  played  in  the 
general  government  of  the  province.   , 

Using  O'Reilly's  ordinance  of  November  25,  1769,  as  our  guide, 
and  having  regard  also  to  the  brevity  which  the  occasion  requires, 
it  appears  that  the  Cabildo  was  primarily  a  local  Municipal  Council, 
composed  of  the  Governor  and  six  regidoi:s  or  councillors  appointed 
by  the  Governor.  The  office  of  regidor  was  sold  to  the  hijDjhest 
bidder,  but  it  had  a  rating  or  value,  and  could  be  assigned  by  first 
paying  into  the  royal  treasury  the  half  of  this  rating  or  value.But 
even  here  the  Governor  held  control  and  could  veto  the  purchase  or 
the  assignment.  These  regidors  were  entitled,  by  virtue  of  their 
office,  to  divide  among  themselves  certain  offices  with  high-sounding 
names;  these  offices,  regidors  and  others,  were  more  or  less  honorable 
and  always  lucrative,  because  in  practice  no  Spanish  official  ever 
failed  to  find  some  source  of  revenue  in  his  office.  At  their  first 
session  and  on  the  first  day  of  every  year  thereafter  the  Cabildo 
elected  out  of  their  own  number  the  officials  r  foresaid,  namely,  the 
Alferes  Royal,  the  Alcalde  Mayor  Provincial,  the  Alguazil  Mayor, 
the  Depositary  General,  and  the  Receiver  of  Fine?.  But  the  election 
was  always  subject  to  the  Governor's  approval.  He  was  the  head  of 
the  first  "ring"  in  Lx)uisiana.  The  Alfere-  Royal  was  the  keeper  of 
the  royal  ensign.  What- other  duties  or  functions  he  exercised,  or 
what  emoluments  he  received,  we  do  not  yet  know,  but  as  a  member 
of  the  Cabildo  he  could  take  over  the  duties  of  an  alcalde  in  case  of 
vacancy  and  he  joined  in  the  exercise  of  many  powers  which  were 
conferred  on  that  body,  some  of  which  I  will  glance  at  later  on. 
The  duties  of  the  Alcalde  Mayor  Provincial  resembled  those  exer- 
cised today  by  the  Chief  of  Police,  save  that  he  sat  as  judge  over  any 
criminal  he  had  arrested,  and  here  he  would  be  likened  to  the  old 
recorders  of  New  Orleans  or  the  judge  of  a  country  parish,  but  there 
was  no  appeal  from  his  sentence.  This  officer,  moreover,  had  the 
authority  to,  and  he  was  specially  charged  to,  ferret  out  crimes 
wherever  conmiitted,and  to  this  end  he  was  made  the  head  of  the  Spanish 
Tribunal  of  the  Saint  Hermandad,  which  was  a  powerful  secret 
organization  organized  originally  in  Spain  to  extirpate  bandits  and 
other  outlaws.  Its  authority,  as  stated  in  the  ordinance,  smacks 
of  the  Inquisition,  and  its  process  resembled  the  procedure  of  our 
post  bellum  Ku  Klux  Klan.  We  are  not  able  to  point  out  the  extent 
of  the  revenues  of  the  Alcalde  Mayor  Provincial,  but  it  was  a  highly 
prized  office  of  evident  power  and  doubtless  it  was  a  remunerative  one. 

The  Alguazil  Mayor  combined  the  duties  of  our  New  Orleans 
Civil  and  Criminal  sheriffs,  and  he  was  primarily  the  guardian  of  the 


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276  The  Louisiana  Historical  Qtiarterly 

peace.  He  was  an  active  and  important  official,  and  one  of  his  sources 
of  revenue  was  the  jail,  for  every  wretch  locked  behind  the  bars  paid 
tees  before  he  could  get  out.  The  Depositary  General  had  duties 
resembling  that  of  a  city  treasurer  and  received  three  per  cent  on  the 
deposits.  The  Receiver  of  Fines  {penas  de  camera)  exacted  for  the 
use  of  the  royal  treasury  was  also  a  lucrative  office  paid  for  by  com- 
missions of  ten  per  cent  on  all  sums  collected. 

Besides  these  monopolies  or  plums  of  office,  the  Cabildo  elected 
each  year' a  manager  of  the  rents  and  taxes  of  New  Orleans.  He 
was  called  the  Mayordomo  in  Proprios,  and  his  position  may  be 
likened  to  a  combination  in  one  office  of  the  duties  of  our  modem 
mayor  and  the  conmiissioner  of  public  works  and  streets,  with 
those  of  the  comptroller  added.  Two  judges  were  also  elected  an- 
nually by  the  Cabildo,  called  Alcaldes  Ordinary,  and  the  Cabildo 
also  elected  each  year  a  Syndic  Procurador  General.  Another  office 
financially  and  socially  quite  an  important  one  was  the  Clerk  (Es- 
cribano)  of  the  Cabildo.  He  also  bought  and  paid  for  his  office, 
and  it  was  subject  to  assignment  under  the  restrictions  already  noted. 
All  offices  for  which  a  price  was  paid  were  called,  for  this  reason, 
venal,  and  with  few  exceptions,  all  official  life  in  those  times  lived  up 
to  this  definition.  The  Escribano  apparently  held  his  office  for  a 
term  of  five  years,  with  a  preference  over  other  candidates  for  appoint- 
ment or  confirmation  at  the  end  of  his  term.  The  power  of  appoint- 
ment was  vested  jn  the  King,  but  when  this  happened  he  had  to  pay 
again. 

It  would  appear  from  the  ordinance  that  the  Cabildo  had  two 
particular  functions.  It  was  a  quasi  deliberative  body  and  a  judicial 
body.  In  this  first  capacity  it  administered  the  a/fairs  of  New  Or- 
leans very  much  as  any  other  body  would  do  it  now.  but  always  in 
subjection  to  the  Governor.  In  the  second  it  sat  as  a  court  of  appeal 
in  judicial  matters  in  civil  cases  only,  and  here,  I  believe,  it  heard 
appeals  of  some  character  from  the  province  at  large.  In  this  capacity 
it  acted  by  two  regidors  designated  for  the  purpase.  Whether  the 
Cabildo  had  any  power  or  duty  over  or  in  connection  with  the  prov- 
ince outside  of  New  Orleans  is  uncertain.  I  am  inclined  to  the  view 
that  it  had  none.  The  government  of  Louisiana  was  vested  in  and 
controlled  by  the  Governor  and  his  administrative  corps;  that  he 
may  have  deliberated  in  the  Cabildo  is  possible,  but  that  this  auto- 
crat would  divide  his  power  with  that  body  is  an  assumption  I  am  not 
prepared  to  accept  without  the  proof,  which  so  far  has  not  been  ob- 
tained. No  writer  so  far  has  examined  the  records  of  the  Cabildo 
still  to  be  found  in  Spain,  and..while  we  may  supply  from  our  archives 


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something  to  help,  I  fear  it  will  remain  true  when  our  work  on  the 
archives  is  finished  that  the  history  of  the  Cabildo  has  not  yet  been 
written. 

The  offices  with  which  we  are  most  concerned  at  this  moment 
are  of  course  the  Alcalde  Ordinary  and  the  Procurador  General. 
The  Alcaldes  Ordinary  were  judges  in  the  full  sense.  In  short,  they 
are  the  ancestors  of  the  district  judge  of  today,  except  that  we  no 
longer  exact  the  "half  annat,"  or  yearly  contribution  of  one-half  of 
the  rating  or  value  of  the  office,  to  which  the  Alcalde  Ordinary  was 
subjected.  These  judges  had  cognizance  of  all  matters  either  civil 
or  criminal  within  their  territorial  jurisdiction,  which  extended 
throughout  the  city  and  the  dependencies  thereof,  excepting  those 
which  fell  to  the  cognizance  of  the  ecclesiastical,  military,  or  other 
special  court.  These  excepted  jurisdictions  were  serious  impediments 
to  the  revenue  of  the  judges,  who  apparently  lived  on  the  fees  of 
office.  The  "Special'*  Court  was  in  truth  a  very  serious  competitor 
because  the  Governor's  court  fell  in  this  category  and  it  was  a  favorite 
place  for  suitors,  particularly  those  with  a  "pull."  Outside  of  New 
Orleans  justice  wa??  administered  by  a  local  commandante  with  an 
appeal  or  reference  to  either  the  Governor  or  the  Cabildo,  and  more 
than  likely  the  former.  This  particular  phase  of  judicial  adminis- 
tration in  Spanish  times  needs  separate  treatment  and  cannot  be 
covered  here,  as  my  time  is  running  away  too  rapidly. 

Nor  does  our  time  permit  more  than  a  glance  at  the  judicial 
system  as  developed  in  New  Orleans,  that  is  also  a  vast  subject,  but 
it  still  must  permit  us  to  quote  the  instructions  for  the  conduct  of  the 
judges.    The  ordinance  says, 

"the  Alcaldes  shall  apperr  in  public  with  decency  and  modesty, 
bearing  the  wand  of  royal  justice,  a  badge  provided  by  law 
to  distinguish  the  judges.  When  administering  justice  they 
shall  hear  mildly  there  who  may  present  themselves,  and 
shall  fix  the  hour  and  the  place  of  the  audience,  which  should 
be  at  10:00  o'clock  in  the  morning,  at  the  City  Hall;  and,  for 
the  decision  of  verbal  causes,  in  the  evening  between  7:00  and 
8:00  o'clock,  at  their  own  dwellings  and  in  none  other." 

I  know  I  raise  in  your  breasts  an  appreciative  comment  on  that 
injunction  to  "hear  mildly,"  because,  apparently,  it  applied  to 
suitors  and  lawyers,  and  I  have  heard  it  is  not  always  observed  in 
these  later  days. 

I  have  mentioned  the  judicial  power  of  the  Cabildo  and  should 
add  that  it  had  cognizance  of  civil  appeals  from  the  Governor's 


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278  The  Louisiana  Historical  Quarterly 

court  and  the  coiu:t  of  the  Ordinary  Alcaldes,  where  the  sum  did  not 
exceed  ninety  thousand  maravides,  about  ts330  of  our  money.  Judg- 
ments above  that  sum  went  to  an  Audiencia  (or  Supreme  Court) 
created  at  Hayana  for  that  purpose.  This  appeal  to  the  Cabildo 
had  to  be  taken  within  five  days  after  the  judgment,  and  the  Cabildo 
immediately  appointed  two  of  its  regidors  to  hear  the  appeal,  sitting 
with  the  judge  who  rendered  the  judgment  appealed  from.  Whether 
this  appeal  was  on  the  law  and  the  facts  we  have  not  yet  verified 
from  our  records.  The  ordinance  required  the  same  to  be  heard  and 
decided  within  thirty  days.  It  is  certain  that  the  question  of  execut- 
ing the  original  judgment  pending  the  appeal  was  under  judicial 
control,  but  here  we  are  also  in  ignorance  regarding  method  of  pro- 
tecting the  appellant  or  restoring  him  to  his  rights  on  a  reversal  of 
the  judgment.  There  is  nothing  so  far  developed  to  indicate  that  this 
appellate  jurisdiction  extended  to  appeals  from  the  other  parts  of  the 
province,  except  perhaps  in  so  far  as  it  could  review  judgments  of  the 
Governor's  court,  which  seems  to  have  enjoyed  a  wider  jurisdiction 
than  that  of  the  Alcalde  Ordinary,  and  as  I  have  just  said,  we  are 
unable  to  say  positively  that  the  Cabildo  exercised  any  jurisdiction 
as  such  over  the  remainder  of  the  province.  This  discovery  must 
await  the  investigation  of  other  records  of  that  body  which,  so  far, 
have  not  been  found.  Those  which  I  am  discussing  are  wholly 
judicial. 

An  Audiencia,  or  Court  of  Appeal,  at  Havana  was  established 
in  1781  for  cases  in  excess  of  ninety  thousand  maravides.  It  was 
composed  of  five  persons,  namely,  the  Captain  General  of  Cuba, 
the  Auditors  of  War  and  Marine,  the  Attorney  of  the  Royal  Hacienda 
(this  office  has  no  English  synonym;  it  may  be  said  to  apply  to  all 
financial  and  revenue  departments  of  the  empire),  and  the  clerk  of 
Government.  From  this  Audiencia  a  further  review  might  be  had 
before  the  Council  of  the  Indies  in  Spain. 

The  Procurador  General,  says  the  statute, 

**is  an  officer  appointed  to  assist  the  public  in  all  their  con- 
cerns, to  defend  them,  pursue  their  rights  and  obtain  justice 
and  pursue  all  other  claims  which  have  relation  to  the  public 
interest." 

This  office  was  a  pure  monopoly.  The  Procurador  just  had  to 
be  employed;  the  litigant  had  no  choice  about  it.  Our  records  show 
that  this  was  an  extremely  lucrative  office;  in  practice  the  Procurador 
appeared  in  every  case,  and  a  procurador  ad  litem  also  appeared 


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whenever  there  were  two  sides  to  the  cause.  Their  fees  and  expenses 
were  taxed  as  part  of  the  costs.  And,  by  the  way,  every  record  is 
closed  with  a  tabulation  of  the  costs.  Everybody  connected  with  the 
courts  had  something  taxed  to  him  at  the  close  of  the  litigation. 
Nobody  was  forgotten,  from  the  judge  to  the  deputy  sheriff,  and  the 
litigant  paid  it  all.  Justice  in  Spanish  times  was  **free"  only  to  the 
officers  of  the  court. 

O'Reilly's  Ordinance  carried  a  table  of  fees,  covering  the  com- 
pensation of  every  officer  from  judge  to  jailer,  but  he  was  merciful 
to  the  lawyers  and  attorneys.  He  allowed  them  fees  according  to 
the  scale  of  the  judges  and  assessors,  but  left  open  the  door  for  an 
appraisenient  of  any  services  not  strictly  covered  by  the  fee  bill  for 
court  work.  I  must  not  forget  t6  add  that  here  lawyers  and  attor- 
neys are  not  synonyms.  The  former  were  of  the  class  of  the  procura- 
dor,  the  latter  merely  represetntatives  of  the  litigant  and  not  necessari- 
ly possessing  legal  knowledge. 

This  sytem  of  charges  was  the  real  burden  which  afflicted  the 
people  in  Spanish  days.  Literally,  one  could  say  that  * 'every  little 
motion"  of  an  official  had  a  compensation  of  its  own,  but  the  thing 
that  stands  out  most  vividly  is  the  value  of  a  magistrate's  signature. 
In  those  days  a  signature  was  a  supreme  effort.  Few  Offifials  there 
were  who  had  not  received  at  baptism  an  extra  name  or  two,  and 
marriage  and  military  service  added  to  the  number.  Besides  these, 
a  **name"  included  sometimes  a  rubric,  and  beaut  iiful  specimens  a 
a  page  long  may  be  found  in  bur  records.  With  the  rubric  you  might 
employ  ailso  a  ''flourish."  These  flourishes  were  creations  of  art;  a 
half  page  was  sometimes  taken  up  before  its  convolutions  were  closed, 
and  as  legal  paper  in  that  period  was  bought  by  the  sheet,  (like  every- 
thing else  it  cost),  we,  in  our  day  of  manifolds  and  office  waste,  can 
scarcely  appreciate  the  suffering  of  the  litigant  who  watched  the 
judge  enlarge  upon  his  signature. 

It  is  a  legend  the  litigant  devised  a  plan  to  flank  the  burden.  A 
signature,  bear  in  mind,  could  te  full,  half,  or  by  cipher,  the  latter 
being  anything  that  the  magistrate  devised  to  represent  that  awe- 
inspiing  thing,  his  name.  At  the  bargain  counter  the  cipher  cost 
half  or  less  than  half  the  plain  signature,  and  it  is  said,  I  think  with- 
out authority,  that  the  latter  in  turn  cost  less  than  the  "signature." 
Be  that  as  it  may,  the  O'Reilly  rule  forestalled  the  official  panic 
which  this  cheapeniiig  of  the  signature  would  have  created.  He 
prescribed  for  the  signature  of  the  "baptismal  and  family  name"  on 
certain  doamients  and  settled  its  value  at  "four,  ;"eals  in  silver 
dollars  of  America."    The  litigant  might  wince,  but  he  had  to  pay. 


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280  The  Louisiana  Historical  Qtiarterly 

In  truth,  our  study  of  the  records  suggests  to  us  that  this  sys- 
tem of  officials  and  of  costs  was  the  motive  for  that  household  ryhme 
about  the  fleas: 

"The  larger  fleas  have  smaller  fleas  that  on 
their  backs  do  bite  'em : 
The  smaller  fleas  have  other  fleas  and  so 
ad  infinitum y 

And  the  larger  flea  in  this  case  was  the  succeulent  citizen  whose 
affairs  took  him  to  the  registry  of  titles  or  mortages,  to  the  Governor, 
or  to  any  of  his  underlings,  to  the  courts  or  to  anywhere!  In  Spanish 
times,  as  I  have  intimated,  almost  ever/  act  of  living  had  to  pass 
before  an  official  and  everywhere  an  open  hand  was  visible  in  official 
life,  waiting  for  its  palm  to  be  crossed  with  a  bit  of  silver. 

One  would  think  the  signature  once  paid  for  was  sufficient,  but 
the  Spanish  word  manana  had  a  meaning  then  as  now.  You  ap- 
peared before  the  judge  and  he  entered  an  order,  which  you  paid  for, 
and  usually  this  order  required  another,  and  so  on  through  many 
pages  of  orders  upon  orders,  to  each  of  which  the  judge  and  the  clerk 
and  the  procurador  and  the  whatnots  subscribed  and  somebody  had 
to  pay.  Manana — tomorrow — was  the  root  of  all  these  ceremonies. 
You  had  a  hearing  today,  another  tomorrow,  and  so  on  down  to  that 
"perfect  day"  when  all  the  officials  appeared  and  "taxed  the  costs" 
and  this  was  not  always  the  end,  for  the  judicial  contador  (auditor) 
would  sometimes  audit  this  and  add  his  tax! 

But  when  we  are  at  an  end  of  criticism  and  take  up  the  records 
of  legal  transactions  we  are  in  a  world  as  new  to  the  French  Creole  of 
that  day  as  in  truth  it  is  remarkable  to  us.  Here  we  find  almost 
meticulous  care,  and  what  time  and  fire  and  water  and  theft  have 
left  to  us  is  enough  to  prove  that  the  legal  end  of  government  under 
Spain  was  handled  with  care  and  skill  and  on  the  whole  with  a  jus- 
tice which  is  very  pleasant  to  contemplate.  History,  like  a  lewd 
gossip,  constantly  repeats  the  scandalthatthe  judiciary  of  the  Spanish 
period  reeked  with  graft,  and  it  is  intimated  that  justice  was  controlled 
and  swayed  according  to  the  power  or  the  wealth  of  the  litigant.  We 
have  indeed  more  substantial  authority  for  this  charge  than  scandal, 
for  Claiborne  declared  officially  in  his  proclamations  and  in  his  re- 
ports to  the  President  and  to  the  Secretary  of  State  that  he  found 
litigation  which  had  run  on  for  years  to  an  apparently  interminable 
end  and  was  still  undecided.  The  jails,  he  said,  were  full  of  criminals 
who  had  *Votted"  there  without  charges  or  who  had  been  forgotten. 


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Courts  and  Law  in  Colonial  Louisiana  281 

if  under  charge.  One  of  his  first  acts  was  a  general  jail  delivery, 
which  raised  questions  that  assumed  almost  a  warlike  aspect.  The 
Spanish  Governor  and  the  Spanish  Intendant  of  1803  hotly  declared 
that  he  had  released  men  charged  with  treason  and  other  offenses 
against  Spain,  but  the  American  was  inexorable  and  the  jails  were 
cleared,  and  the  litigation  put  under  rules  th^t  soon  freed  the  dockets. 

Whoever  has  the  right  of  this  controversy,  we  can  find  enough 
certainly  to  prove  that  some  cases  at  least  show  no  taint.  lu  any 
event,  the  sttident  of  these  recores  will  be  richly  repaid.  Here  will 
be  found  a  harvest  of  legal  knowledge  far  richer  than  the  French 
French  period,  and,  more  than  that,  we  will  find  precedents  for 
much  that  was  assimilated  in  the  practice  acts  and  legal  procedure 
of  the  territory  of  Orleans  before  the  Digest  of  1808;  precedents 
that  fertilized  that  law  book  and  reappeared  in  the  Code  of  Practice 
of  1826  and  the  Civil  Code  of  1825.  It  is  plain,  moreover,  that  these 
records  of  the  Spanish  judicial  period  were  built  upon  the  forms 
that  had  been  established  in  the  French  period.  Indeed,  intellectual 
effort  to  imderstand  the  Spanish  phrases,  particularly  in  the  first 
ten  years,  would  be  wasted  unless  one  was  familiar  with  the  model. 
Here  again  we  find  the  influences  of  on^  man  guiding  the  course  of 
the  practice.  At  the  first  sale  of  offices  under  the  new  rule  the  suc- 
cessful bidder  for  the  clerkship  of  the  Cabildo  was  the  clerk  of  the  • 
recently  abolished  Superior  Coimcil.  His  position  in  the  Cabildo 
made  him  clerk  ex-officio  notary  for  this  judicial  system.  His  power 
must  have  been  quite  as  great  in  the  new  office  as  in  the  old  and  it  is 
more  than  probable  that  the  Syndic  Ptocurador  General  and  the 
other  prociu^dors,  who  were  brought  here  from  Havana  or  Spain, 
leaned  on  and  took  advice  from  the  man  who  was  familiar  with  the 
court  proceedings  of  the  previous  era.  Whatever  may  have  been  the 
cause,  it  is  clear  that  the  meat  and  essence  of  the  court  records  of 
Spanish  Louisiana  are  French  in  substance.  There  was  more  formali- 
ty, more  writing,  more  signatures,  more  fees,  but  the  pleadings  were 
substantially  as  of  yore,  and  we  should  add  that  though  the  Spanish 
became  less  Gallic  as  time  wore  on,  the  fundamentals  never  changed. 
But  the  issues  did  change,  and  here  we  find  questions  debated  and 
decided  in  a  manner  quite  different  from  French  times. 

The  cause  of  this  may  also  te  traced  to  O'Reilly's  Code,  the 
general  law  laid  down  by  him  at  the  reorganization  of  the  govern- 
ment in  1769.  This  book  is  a  great  rarity  in  our  libraries  and  an 
expensive  item  for  the  bibliophile;  indeed,  it  is  about  as  hard  to  find 
as  oil  is  in  sohie  of  the  dusty  areas  of  this  splentiid  region  (North 
Louisiana),  which  is  enriching  so  niany  of  our  brethren  with  con- 


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282  Th6  Louisiana  Historical  Quarterly 

flicts  over  titles  and  perhaps  with  royalties  on. wells.  Out  of  your 
surplus  you  may  he  minded  to  provide  for  the  .reprinting  of  this 
statute^  and  out  of  yojir  leisure  annotate  it  with  our  jurisprudence 
based,  on  its  sources.  Incidentally,  you  may  pay  Ji^re,  as  above 
suggested,  that  debt  you  owe  the  profession. 

At  the  close  of  the  preamble  to  O'Reilly's  first  ordinance,  abol- 
ishing the  Superior  Council  and  creating  the  Cabildo,  the  Governor 
said: 

.**As  the  want  of  advocates  in  this  coimtry  (he  had  dis- 
posed of  the  only  lawyers  of  the  French  era,  Lafreniere  and 
Doucet)  ard  the  little  knowledge  which  his  new  subjects 
posJiess  of  the  Spanish  laws  might  render  a  strict  observance 
of  them  difficult,  and  as  every  abuse  is  contrary  to  the  inten- 
tions, of  His  Majesty,  we  have  thought  it  useful  and  even 
necessary  to  form  an  abstract  or  regulation  drawn  from  the 
said  laws  which  rnay  serve  for  instruction  and  elementary 
formulary  in  the  administration  of  justice  and  in  the  economi- 
cal government  of  this  city  until  a  mor^  general,  knowledge 
.  of  the  Spanish  language  may  enable  every  one,  by  the  perusal 
of  the  aforesaid  laws^  to  extend  his  information  to  every  point 
ther^f."  .  . 

The  abstract  of  Spanish  I^w  was  promulgated  contemporan- 
eously A\ith  the  first  ordinance,  and  it  is  entitled: 

**Ijnstnictions  as  to  the  manner  of  instituting  suits,  civil 
and  crimipal,  and  of  pronouncing  judgments  in  general  con- 
formity to  the  laws  of  the  Neuva  Recopilacion  de  Casiilla 
and  the  Recopilacion  de  las  Indias  for  the  government  of  the 
judges  and  parties  pleading  until  a  more  general  knowledge 
of  the  Spanish  language  and  more  extensive  information  upon 
those  laws  may  be  acquired;  digested  and  arranged  by  Doct. 
D(m  Manuel  Joseph  de  Urrustia  and  the  Counsellor  Don 
Felix  Rey  by  order  of  his  Excellency  Don  Alexander  O'Reilly, 
Governor  and  Captain  General  of  the  province  by  special 
commission  of  His  Majesty." 

This  work  was  promulgated  in  French,  whjch  Gayarre  says  was 
**t7es  mauvais  francais,**  In  my  studies  I  have  followed  the  copy 
annexed  to  his  Histoire  de  laLonisiane,  N.  Q.,  1847,  and  for  the 
purposes  of  this  essay  have  used  an  English,  translation  made  by 
Gustavis  Schmidt,  a  New  Orleans  lawyer,  and  published  in  his 


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Courts  and  Law  in  Coloniai  Louisiana  ^183 

Louisiana  Law  Journal  ki  August,  IS^^V  I  l^ave  also  ^n  a  Spanish 
copy  in  possession  of*,  S,  J.Shwart?,  of  New  Orleans.  There  is  an- 
other reprint  of  the  .t^nsiaitlon  in  French's  Historical  Collections  of 
Louisiana.  .,  •  . 

T^he  abstract  is  a  little  code  covering  law;  and  practice,  and  the 
redactors  annotated^  it  with  references  to  the  sources  whence  it  was 
drawn.  Through  these  we  know  that  beside^  the  sources  indicated 
in  O'Reilly's  first  ordinance  Jhe  redactors  also  used  at  least  two 
commentators  and  possibly  incorporate  their  views  as  of  equal 
authority  with  the  statutes  on  which  it  is  based,  and  in  Spanish 
times  this  abstract  and  the  first  ordinance  were  regarded  as  parts  of 
each  other.  The  abstract  occupies  thirty-two  printed  pages  in 
English  print,  covering  about  ten  thousand  words.  It  is  divided 
into  ^ix  sections,  each  of  which  is  subdivided  intp  numbered  para- 
graphs. Each  section  has  a  title  and  the  3ubjects  treated  are  the 
following:  Sec.  U  Of  Civil  Judgments  in  General'  (Z)£5  jugements 
civils  ordinairesy.  Sec!  2,  Of  Executory  Proceedings  (Des  Jugements 
Executives):  Sec.  3,  0/  Judgments ^n  triminal  Cases  (Des  jugements 
criminels) :  Sec.  4,  Of  Appe3ls  {Des  Appels):  Sec.  5,  Of  Punishments 
{Des  peines):  Seq.  6,  Of  Testaments  (/?^5  testaments).  The  work 
closes  with  a  Table  of  Fees  demandable  by  judges,  lawyers,  escribanos, 
attorneys,  apd  other  officers  of  justice  {Tariff  des  droits  que  doivint 
percevoir  les  juges,  le^>  avocats,  le^  escrirans,  les  procu^reurs,  etles  autre 
offtciers  de  justice  siatpir)..  As  indicated  by  the  titles  of  the  sections, 
the  first,  §econd  and  fourth  sections  relate  to  civil. practice;  the  sixth 
combines  thp  law  and  practice  on  ^Us;  th^  third  and  fifth  concern 
crimes  and 'p)enalti^s.    ,     . 

The  first  section  prescribes  hpw  civil  actions  shall  be  brought 

I  and  deifended,  and  here  we  may  say  that  the  forms  of  pleading  were 

i  very  similar  to  purs  of  today  and  consisted  of  the  petition,  notice  or 

citation,  exceptions  and /or  answer,  and  a  replication  thereto,  but 

there  was  no  public  trial.    The  witnesses  were  examined  in  secret 

by  the  judge,  and  only  after  both  sides  bad  closed  was  an  opportunity 

afforded  to  the  parties  tp  see  th|B  evidenceadduced  in.the  case;  on 

this  exposure  or  "publication*'  of  the  piroofs,  either  party  could  object 

or  except  thereto  for  ce,rtain  causes,  such  as  the  capacity,  relationship, 

or  Interest  oif  the  witnesses?,  and  on  this  issue  proof  was. permitted. 

Notwithstanding  the  provision  governing  exanjination  of  witnesses 

•  by  the  judge,  we  find  in  tl^e  records  constant  examinations  under 

I  interrpg?itories  propounded  ^y  ^ach  side,  but  this  may  have  been 

the  method  estabiished  by  the  judge  imder  the  foregmng  rule  without, 

however,  conveying  ciurent  knowledge  of  the  results  thereof  to  the 


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284  The  Lauieiana  Historical  Quarterly   • 

litigants.  Other  provisions  in  this  section  govern  the  hearing  or 
argument;  the  time  of  decision,  and  the  delay  for  the  appeal,  all  of 
which  delays  are  regulated,  as  for  instance,  nine  days  for  citation, 
twenty  days  for  deliberation  by  the  judge,  and  five  days  for  appeals. 
If  no  appeal  were  taken  the  successful  party,  on  motion,  obtained  a 
definitive  judgment  which  would  indicate  that  the  appeal  was  a 
method  of  new  trial  rather  than  the  suspensive  transfer  of  the  case 
to  a  new  court.  After  the  judgment  was  final,  execution  could  only 
be  obtained  by  motion,  and  as  this  order  was  under  the  judge's  con- 
trol it  may  be  that  here  is  one  of  the  grounds  for  complaint  against 
delays  to  which  history  points.  I  have  foimd  no  writs  such  as  we 
possess,  and  I  judge  the  order  of  execution  designated  the  relief  or 
form  of  lecovery  which  the  judge  saw  fit  to  grant. 

Appeal  is  treated  in  the  fourth  section  and,  as  akeady  intimated, 
this  appeal  went  to  the  Cabildo  in  cases  involving  less  than  ninety 
thousand  maravides  and  apparently  without  bond,  and  I  am  the 
more  convinced  of  this  because  provisions  are  made  for  sp)eeding 
the  case  to  a  hearing  within  thirty  days  and  for  a  decision  by  the 
judges  within  ten  days  thereafter.  In  the  Cabildo  the  Clerk  took 
charge  of  the  record,  and  here  it  appears  the  original  record  was 
transmitted.  The  Cabildo  appointed  two  regidors  to  hear  the  appeal 
conjointly  with  the  judge  who  decided  it, 'and  the  opinion  of  two  of 
these  judges  governed  the  result  and  this  judgment  was  final  without 
right  of  further  appeal.  It  was  returned  to  the  lower  coiut  for  execu- 
tion. If  the  judgment  involved  more  than  ninety  thousand  mara- 
vides the  appeal  went  to  the  Audencia  in  Havana  previously  de- 
scribed. An  Audencia  was  a  coiurt  of  last  review  and  it  had  as  a  rule 
other  duties  of  an  administrative  character,  but  this  one  at  Havana 
was  a  special  tribimal  created  for  this  particular  purpose  and  I 
judge  its  functions  were  purely  judicial.  When  this  appeal  was 
lodged,  the  appellee  could  bring  up  at  once  the  preliminary  question 
whether  it  should  not  be  executed  notwithstandirg  the  appeal,  and 
the  judge  could  order  its  execution  in  his  discretion,  but  he  seems 
to  have  had  little  or  no  discretion  in  certain  cases,  such  as  dowry, 
alimony,  or  the  like,  '*in  which  appeals  should  not  lightly  be  admitt- 
ed." The  same  rule  governed  appeals  in  criminal  cases  where  the 
lower  judge  could  be  induced  to  certifj':  he  had  doubts  or  that  from 
some  difficulties  on  the  trial  he  thought  it  edvisable  to  submit  the 
judgment  to  the  examination  of  the  super  or  tribunal.  Indeed,  I 
should  add  that  no  appeal  was  allowed  in  criminal  eases  as  of  right; 
it  depended  wholly  on  the  grace  of  the  lower  judge  whether  his 
sentence  should  be  reviewed.    I  must  also  add  that  our  records  show 


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Courts  and  Law  in  ColoniaZ  Louisiana  28S 

many  illustrations  of  judicial  good  nature  in  this  respect  and  it  is 
curious  that  in  almost  each  such  appeal  there  was  a  reversal. 

In  all  appeals  to  the  Audencia  at  Havana  the  original  record 
was  transmitted,  but  a  transcript  of  the  same  was  made  and  pre- 
served in  the  court  below.  Contemporary  complaint  against  delays 
in  this  tribunal  were  as  frequent  as  in  our  day.  Moreover,  it  is  said 
that  when  the  case  was  carried  beyond  that  tribunal  to  the  Council 
of  the  Indies  the  appellee  ceased  to  remember  his  wrongs  and  was 
considered  fortunate  if  he  lived  to  see  the  end  of  it.  We  do  not  know 
as  yet  what  method  was  followed  to  review  a  decision  of  the  Audencia. 
Neither  have  we  foimd  any  authority  for  the  exaction  of  a  bond 
for  the  appeal  from  that  court;  the  matter  was  probably  in  the  dis- 
cretion of  the  upper  judge.  None  of  the  Cuban  records  are  here  to 
enlighten  us,  but  many  thousands  of  papers  from  Cuba  concerning 
Louisiana  are  still  in  fair  state  of  preservation  in  Spain,  whither  they 
were  removed  at  the  close  of  the  Spanish  war  of  1898.  This  and  other 
questions  must  wait  on  their  examination. 

Section  2  of  the  Code  O'Reilly  treats  of  executory  process  and 
we  may  pass  this  with  the  remark  that  one  seems  here  to  be  reading 
the  Louisiana  Code  of  Practice  on  the  same  topic.  It  is  all  so  de- 
lightfully familiar  that  we  are  compelled  to  believe  our  redactors 
wrote  with  the  section  before  them. 

**When  a  debt  (says  the  first  paragraph)  shall  be  fully 
established  and  it  imports  a  confession  of  judgment  as  by  an 
agreement  or  obligation  made  before  a  notary;  by  a  simple  note 
legally  acknowledged  by  the  drawer;  by  confession  of  judg- 
ment although  without  any  written  title  from  the  debtor; 
by  a  defiritive  sentence  of  the  court,  or  by  the  cash  books  of 
the  debtor  acknowledged  by  him;  in  all  these  cases  the  credi- 
tor shall  draw  up  a  declaration  setting  forth  his  claim  and  his 
action  annexing  thereto  the  document  which  entitles  him  to  an 
order  of  execution,  and  moving  that  by  virtue  of  said  document 
a  writ  of  execution  be  granted  him  for  the  smn  due." 

Other  provisions  require  the  judge  to  cause  the  debtor  to  be 
simmiored  to  pay  the  demand  and,  in  default,  his  property  shall  be 
seized;  the  sheriff  (Alguazil  Mayor)  shall  make  this  summons.  If 
the  debtor  complies,  the  execution  shall  cease;  if  otherwise,  his 
property  shall  be  seized  and  held  unless  he  gives  good  security  for 
the  payment  thereof.  If  he  has  not  sufficient  property  he  shall  be 
imprisoned  unless  he  be  privileged  against  arrest  for  nobility  or 


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286  The  Louisiana  Historical  Qtcarterly ' 

exempted  for  legal  cause:  the  military,  regidors,  officers  of  finance, 
women,  lawyers,  physicians,  **and  other  distinguished  persons"  are 
in  the  exempted  class.  The  debtor  could  make  opposition  to  the 
seizure  mthin  three  days  after  notiie  of  demand  and  the  opposition 
must  be  proved  within  ten  days  at  furthest.  In  the  absence  of  op- 
position or  on  decision  adverse  thereto  the  seized  property  was  ap- 
praised by  ''two  capable  persons"  and  public  notice  given  of  the 
sale,  which  for  movables  was  three  notice^  in  nine  days  and  for 
immovables  every  nine  days  for  thirty  days,  and  it  was  sold  on  the 
fourth  and  last  notice.  Our  Spanish  records  ^e  full  of  proceedings 
via  execuiiva,  which  with  little  change  would  serve  for  similar  purposes 
today. 

Section  6,  Of  Testaments,  covers  instructions  regarding  the 
procedure  in  the  execution  of  nuncupative  private  and  public  wills 
and  mystic  ijsrills: 

*Tor  the  validity  of  a  nuncupative  will  it  is  necessary 
that  the  same  be  received  by  a  notary  In  the  presence  of 
at  least'three  witnesses,  residents  of  the  place,  or  if  there  be 
no  notary,  there  must  be  present  five  witnesses,  residents  of 
the  place  in  which  the  will  is  to  be  made.  If,  however,  it  is 
impossible  to  procure  the  last  •  mentioned  nimibef,  three  may 
suffice." 

That  sounds  like  an  article  of  the  .Qvil  Code.  Mystic  wills, 
apparently,  may  have  been  writtep  by  the  testator  or  by  a  witness, 
for  the  instructions  are  silent^  but  it  is  provided  that  it  shall  be 
delivered  to  the  notary,  who  shall  seal  it,  and  the  testator  shall  put 
an  endorsement  on  the  cover  stating  that  it  is  his  will,  which  must 
be  signed  by  him  and  by  Feven  witnesses,  , 

**if  they  cjan  Avrite,  and  if  not,  the  others  shall  eign  for  them, 
,    . so.  that  there  be  eight  signatures^  including  that  of  the  Es- 
cribano,  who  shall  also  put  his  signature  thereto." 

The  olographic  will  is  not  mentioned,  but  codicils  are.  A  large 
space,  proportionately,  is  devoted  to  wills  made  by  deputy  or  agent 
which,  from  its  prominerxe  in  the  statute,  must  have  been  a  thing 
of  common  occurrence.  There  are  provisions  covering  advance- 
ment?  to  heirs  and  one  may  deduce  that  collation  was  so  well  under- 
stood that  a  reference  was  not  needed  in  the  abstract.  There  is  a 
provision  concerning  legacies  to  legitimate  descendants,  as  to  which 
the  testator 


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Courts  arid  Law  in  Colonial  Louisiana  287 

"may  impose  such  conditions  in  remainder  or  entailment 
upon  the  property  bequeath^  as  h^  may  think  t)roper  *  ♦  ♦ 
to  the  end  that  the  said  b^tiest'may  never  pass  td  k  stranger 
unless  all  the  relations  iti  the  order  afore.said  shall  be  deceased/' 

Provision  is  made  limiting  the  right  and  capacity  of  illegitimate 
children  to  inherit,  and  another  clause  covers  intestacy'  \there  there 
are  no  legitimate  children  or  ascendants.  This  whole  section  is  the 
least  lucid  in  the  abstract  and  evidently  leaves  much  imtouched  thlat 
belongs  to  the  subject  matter. 

Sections  3  and  5  Of  Crimes  land  Their  Punishment,  need  not  de- 
tain us  except  to  siay  that  here  may  be  found  the  material  for  an 
interesting  essay,  particularly  because  we  have  many  records  covering 
prosecutions  for  varied  offenses;  sufficient,  in  fact,  to  write  the  his- 
tory of  the  crimirlal  law  of  Spanish  Louisiana.  Neither  should  we  say 
more  than  we  have  already  said  regarding  the  fee  bill.  These  allow- 
ances have  been  with  us  since  the  begiilning  of  time  and  doubtless 
will  continue  to  follow  the  revolutions  of  the  earth  unto  the  end 
thereof,  but  I  am  tempted  to  add  that  this  old  'Table  of  Fees'*  has 
all  the  earmarks  of  an  old  ac(iuaintance,  for  we  still  maintain*  some 
of  its  antique  peculiarities;  for  instance,  that  venerabk  ward  of  the 
probate  court,  the  appraiser,  was  paid  in  that  day  two  ducats  per  diem, 
about  four  dollars  of  pur  money,  and  we  are  paying  him  that  now, 
whenever  our  courage  holds  him  to  the  fee  bill! 

This  review  of  the  administrative  side  of  the  Spanish  system 
leaves  me,  I  regret  to  say,  little  room  for  special  mention  of  the 
judicial  records.  These  richly  deserve  attention  and  they  will  get  it 
some  day.  Due  to  the  method  employed  and  to  the  character  of  the 
isvsues  one  may  get  here  much  closer  to  the  life  of  the  times  than  at 
any  other  source.  I  am  prone  to  think  a  study  of  the  whole  era  will 
modify  the  charges  oif  corruption  to  which  I  have  referred.  I  am  the 
more  disposed  to  this  view  because  the  roll  of  the  names  of  those  who 
held  judicial  office  from  1770  to  1803  includes  many  men  whose 
reputations  were  then  and  thereafter  spotless  in  the  commimity. 
Forstall,  Trudeau,  Delachaise,  Fbucher,  Abnonaster,  among  the 
French  Creoles,  and  de  Reggio,  Ortega  and  Navarro  among  the 
Spaniards,  are  names  that  held  the  respect  of  the  people  then  and  of 
posterity  thereafter. 

I  have  no  doubt,  the  evidence,  indeed,  is  almost  indubitable, 
that  the  government  side  was  rotten  and  cursed  by  the  love  of  gold, 
and  it  would  not  be  strange  if  we  found  its  reflection  in  the  judiciary. 
I  have  not,  however,  seen  anything  in  this  vast  array  of  papers  to 


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288  The  Louisiana  Historical  Quarterly 

indicate  it.  On  the  contrary,  there  is  much  to  prove  that  on  the 
judicial  side  law  was  equity  and  mildly  administered,  and  that  it  was 
this  regime  which  really  created  in  the  people  of  the  province  of 
Louisiana  that  undoubted  love  and  support  of  the  civil  law  and  its 
ways,  which  fought  the  successful  battle  for  that  law  in  the  territorial 
period.  And  now  I  must  dwell  for  a  moment  before  closing  on  this 
last  thought,  to  suggest  something  which  I  have  not  seen  recorded 
in  oiu-  histories,  and  that  is  this,  when  Claiborne  took  up  his  task, 
that  herculean  and  unusual  task  of  ruler,  legislator  and  judge,  for  he 
combined  all  those  powers  in  his  single  person,  and  at  one  time,  he 
foimd  ready  to  his  hand  a  Municipal  Council  in  New  Orleans  created 
by  Laussat  and  composed  of  the  very  best  material.  A  leading 
Creole  at  its  head  and  a  fair  division  of  Creoles  and  Americans  in 
the  membership.  Just  such  a  body  as  the  recently  deceased  Cabildo 
and  not  greatly  differing  from  the  old  Superior  Council.  Could 
Claiborne,  with  his  supreme  authority,  have  been  led  to  confer 
judicial  fimctions  on  that  body  he  might  have  altered  our  legal 
destiny.  We  would  possibly  have  slipped  gradually  into  an  acquain- 
tance .with  the  other  system  and  in  time  have  forgotten  the  mild 
sway  of  the  past  under  the  equally  mild  justice  of  a  judiciar>'  which 
had  the  confidence  of  the  inhabitants.  If  the  idea  occurred  to  him 
he  never  expressed  it  and  on  the  contrary  created  at  once,  practically 
his  first  act,  a  Court  of  Common  Pleas,  after  the  model  of  his  home 
system  in  Tennessee  and  Virginia.  He  filled  its  bench  with  judges 
who  spoke  his  tongue;  he  established  that  language  in  its  reccM^s, 
and  out  of  his  common  law  experience  he  devised  rules  for  this  court 
absolutely  foreign  to  an^^ing  the  Creoles  had  ever  heard  or  experi- 
enced. He  repeated  from  another  angle  O'Reilly's  ruthless  policy. 
The  Creoles  took  it  as  a  challenge  and  the  war  which  was  thus  started 
ended  only  when,  by  congressional  relief  and  ultimate  admission 
to  the  Union  with  full  right  of  citizenship,  the  natives  of  Louisiana 
wrote  into  their  fundamental  law  that  principle  which  preserved  the 
civil  law.  That  law  had  been  the  leading  institution  of  Louisiana 
for  one  hundred  years  before  Claiborne  came  among  us.  We  have 
added  another  hundred  or  more  years  to  that  score.  We  may 
therefore,  say  that  our  civilization  is  based  on  its  principles;  that  by 
ancestry,  birth,  breeding  and  training  we  are  civilians,  and  this 
condition  must  at  least  persist  until  this  generation  passes.  A  new 
school  may  teach  a  different  principle,  but  until  this  is  done  the  civil 
law  must  remain.  Whether  it  rests  with  us  to  preserve  that  system 
or  to  join  hands  with  our  sister  states  and  go  over  to  a  new  school 
is  for  the  future  to  decide.    But  I  say  to  you  before  we  commit  that 


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Courts  and  Law  in  Colonial  Louisiana  289 

decision  to  the  future  let  us  make  up  the  record.  Let  us  put  our  ar- 
chives in  shape  for  the  children  who  will  soon  take  our  places,  that 
they  may  study  the  past  and  plan  for  the  future.  With  our  history 
ready,  and  the  archives  as  our  text,  let  posterity  make  up  the  judg- 
ment! 

I  cannot  sit  down  without  appealing  for  action  by  you  on  this 
vital  matter.  You  should  create  a  committee  on  archives,  charged 
with  the  duty  to  study  the  problem  and  to  recommend  relief.  I  have 
talked  about  French  and  Spanish  records,  now  scattered  in  New 
Orleans,  Baton  Rouge,  Natchitoches  and  St.  Martinville,  but  ar- 
cJiives  is  a  small  word  with  a  large  meaning.  It  covers  every  public 
and  private  docimient  bearing  on  any  feature  of  life  and  government 
in  Louisiana  as  a  colony  of  France,  as  a  province  of  Spain,  as  a  terri- 
tory of  the  United  States,  and  as  a  sovereign  State.  The  Committee 
should  build  a  plan  which  will  sustain  and  protect  these  archives  and 
open  them  to  public  use.  The  legislature  will  imdoubtedly  respond 
to  your  appeal.  The  Bar  Association  has  led  in  many  great  move- 
ments for  the  public  good.  Here  lies  an  opportunity  to  crown  your 
work;  the  time  is  opportune;  the  object  noble.  Why  not  act  now  and 
act  quickly? 


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SjERVINIEN'S  CjASE— 1752 

"       ,  -       •     .  ;    ,    ii'" ■.-'•.  1     -    •       I  ■ . 

CRIMINAL  PROSECUTION  AGAINST  THE  MCMORY  OF  A 
'      '  DECEASED   SuiciDE. 


■r- 


THE  ATTOilNBY   GENERAL.  ^     ^^^^'  ^^^^^  ^^ 

•        bef6ri!j  the  superior 


vs. 


'    COUNCIL  OiF   LrOUlSIANA 
AJ^DRE  SERVINIEN  .  .     ,  ^^  ^^^  ORLEANS 


From  the  French  Becorda  in  the  Cabildo. 
Edited  by  Henry  P.  Dart. 


Our  general  history  of  the  French  period  tells  of  two  in- 
stances of  indictments  of  dead  men  for  suicide.  Gayarre  (1:499) 
mentions  Labarre'&  case  in  1738,  and  says  that  "a  curator  was 
appointed  to  the  corpse  which  was  indicted,  tried,  convicted  and 
sentenced  to  be  deprived  of  Christian  burial  and  to  lie  rotting  and 
blackening  on  the  face  of  the  earth  among  the  offal,  bones  and 
refuse  of  the  butchers'  stall,"  but  we  have  not  found  the  record 
of  this  case.  Fortier  (1:248-251)  gives  full  details  of  Servinien's 
case  1752  where  a  similar  prosecution  resulted  in  the  exonera- 
tion of  the  suicide's  memory  on  the  ground  that  he  was  tem- 
porarily insane.  This  record,  fortunately,  has  been  preserved,' 
and  all  the  papers  connected  with  the  incident  are  in  our  ar- 
chives. Aside  from  its  curious  interest  this  Servinien  case  is 
valuable  to  the  legal  historian,  because  it  is  a  perfect  example  of 
the  Louisiana  procedure  under  the  Criminal  Ordinance  of  France 
of  1670.  We  learn  from  it  just  what  that  procedure  was,  and 
what  part  the  several  officials  of  the  Colony  took  in  such  prose- 
cutions. From  the  record  it  appears  that  the  corpse  was  treated 
just  as  a  living  person  would  be  for  the  purpose  of  prosecution, 
trial  and  conviction. 

It  seems  curious  in  this  day  that  so  much  time,  trouble  and 
expense  would  be  expended:  upon  a  suicide  who  had  passed 
beyond  this  world's  pursuit.  But  suicide  in  French  procedure 
was  a  crime  "homicide,"  and  the  punishment  was  a  denial  of 
Christian  burial,  the  decedent's  memory  was  made  infamous 


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Se^vinien^s  Case,  1752  ,       .  89X 

and  at  one  period  his  estate  was  forfeited.  » Christian  burial  not 
only  meant  much  in  those  days,  but  the  suicide's  heirs  suffered 
physically  as  well,  for  the  "infamy"  defscended  upon  them. "  The 
poor  fellow  in'  this  instance  was  a  humbl^^  half-crazed  young  sol- 
dier, but  the  majesty  of  the  law  had  to  be  protected,  and  it 
enforced  the  duty  upon  the  authorities  to  proceed  in  its  vindica- 
tion. The  result  here  is  that  there  has  survive^  for  our  instruc- 
tion this  very  unique  and  perfect  set  of  the  forms  in  use  iiji 
French  Colonial  Louisiana  in  all  cases  of  criminal  nature.  We 
have  printed  the  recprd  of  another  criminal  prosecution,  with 
which  this  may  be  compared.  See  Degout's  Case,  3  Lia.  Hist. 
Quarterly  p.  294. 

The  documents  have  been  translated  by  Mrs.  H.  H.  Cruzat 
and  have  been  carefully  studied  by  others,  so  as  to  insure  a  final 
edition  of  the  record  for  future  use.  We  also  print  the  text 
for  the  satisfaction  of  the  student  who  may  Wish  to  use  the 
original  forms. 

There  are  ten  documents  in  the  record,  viz: 

1.  1752,  April  17.    Information  or  proces  verbal  of  Atty.  Gen- 

eral Fleuriau  and  Clerk  Henry  covering 
visit  to  the  scene  of  suicide  and  ihspection 
of  the  corpse. 

2.  1752,  April  18.    Inquest  by  Jean  Baptiste  Raguei,  Coun- 

cillor of  the  Superior  Council^  with  testi- 
mony adduced  thereat. 

8.    1752,  April  19.    Proces  verbal  covering  inquiry  into  sur- 
reptitious removal  of  the  corpse. 

4.  1752,  April  19.    Appointment  of  Curator  t6    defend    the 

memory  of  deceased. 

5.  1752,  April  20.    Reexamination  of  witnesses    before    Ra- 

guet  and  Fleuriau. 

6.  1752,  April  20.    Interrogation  by  Raguet  of  Pierre  Cecille, 

Curator. 

7.  1752,  April  21.    Confrontation  of  witnesses  before  Raguet 

and  Cecille. 

8.  1752,  May      5.    Opinion  of  Fleuriau. 

9.  1752,  May      5.    Confrontation  of  Cecille. 

10.    1752,  May      6.    Decision  of  the  Superior  Council. 


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292  The  Louisia/na  Historicdl  Quarterly 

Translation. 

I.    Proces   Verbal   of-  Judicial    Inquest  of  Attorney   General    Fleuriau    and 
Clerk  Henry  Upon  the  Suicide  of  Andre  Servinien. 

April  17,  1752. 

In  the  year  one  thousand  seven  hundred  and  fifty-two,  on 
the  seventeenth  day  of  April,  at  10  o'clock  in  the  forenoon,  we, 
Francois  Fleuriau,  Attorney  General  of  the  King  in  the  Superior 
Council  of  the  province  of  Louisiana,  on  information  given  by 
Sr  Francois  Simare  de  Bellisle,  a  bachelor,  Major  of  the  troops  in 
this  city,  that  there  was  a  soldier  in  the  neighborhood  of  the  bar- 
racks, on  the  side  of  the  Intendency,  who  had  blown  off  his  head 
with  a  gun. 

We  went  to  the  said  neighborhood,  where,  having  entered 
the  first  yard,  accompanied  by  the  clerk  of  the  Council,  we  were 
led  to  another  small  yard  where  were  the  privies ;  there  we  saw 
a  corpse  stretched  on  his  back  with  his  gun  between  his  legs  and 
a  bad  knife  on  the  trigger  of  the  said  gun.  This  man  is  a  sol- 
dier, we  are  told,  named  Andre  Servinien,  so-called  La  Rochelle, 
a  soldier  of  Benoist's  company.  His  whole  skull  was  carried 
away  and  his  brains  blown  at  a  distance  f roni  his  head.  We  saw 
the  marks  of  the  bullets  against  the  wall  of  said  place,  which 
made  us  think  that  the  said  soldier  blew  out  his  brains  standing, 
the  barrel  of  the  gun  apparently  resting  against  his  forehead, 
and  that  he  used  his  foot  to  let  the  trigger  loose;  the  said  gun  was 
still  lying  between  his  legs.  We  then  ordered  that  the  body  be 
transported  to  the  Royal  Hospital  of  this  city  to  have  it  laid  on 
the  ground,  and  to  institute  proceedings  against  the  said  corpse 
on  our  demand  and  we  have  drawn  up  the  present  proces  verbal 
to  serve  and  avail  as  need  shall  be. 

At  New  Orleans,  the  above  mentioned  day,  month  and  year. 
Signed :    "Fleuriau". 

"Henry,  clerk"  (paraph). 


2.    Inquiry  by  Judge  Raguet  on  Suicide  of  One  Andre  Servinien.. 

April  18,  1752. 
Inquiry  conducted  by  us,  Jean  Baptiste  Raguet,  Councillor  of 
the  King  in  the  Superior  Council  of  the  Province  of  Louisiana,  on 
petition  of  the  Attorney  General  of  the  King,  plaintiff  and  accuser 


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Servinien's  Case,  175i  293 

against  the  memory  of  a  soldier  named  Andre  Servinien,  so-called 
La  Rochelle,  charged  with  having  committed  homicide  and  de- 
stroyed himself  by  a  gun  shot  in  the  head,  which  inquiry  was 
conducted  as  follows  on  his  life  and  morals  as  well  as  on  his  homi- 
cide. 

April  eighteenth,  one  thousand  seven  hundred  and  fifty-two, 
three  o'clock  in  the  afternoon. 

Joseph  Odoy,  a  soldier  of  Benoist's  company,  garrisoned  in 
this  city,  aged  twenty-six  years,  of  the  Catholic,  apostolic  and 
Roman  religion,  who  having  sworn  to  speak  the  truth,  declared 
that  he  was  neither  a  relative,  a  connection,  nor  a  servant  of  the 
parties,  and  that  he  was  cited  on  this  day  to  testify  to  the  truth  on 
request  of  the  Attorney  General  of  the  King,  by  a  notice  which  he 
returned  to  us. 

Testifies  on  the  facts  mentioned  in  the  complaint  of  the 
Attorney  General  of  the  King,  which  was  read  to  him,  that  one 
La  Rochelle,  a  soldier  of  his  company  and  one  of  his  mess,  killed 
himself  yesterday  at  eight  or  nine  o'clock  in  the  morning,  with  his 
gun  near  the  privies,  that  he,  the  witness,  on  what  was  told  him, 
went  to  see  him  with  the  motive  of  going  to  get  water  from  the 
river  and  found  him  dead ;  that  an  hour  before  this  happened  the 
same  soldier  had  taken  up  a  knife  saying  that  he  wanted  to  kill 
himself,  that  every  day  as  soon  as  he  was  in  the  least  intoxicated  or 
that  he  had  drunk  a  dram  he  was  in  a  terrible  passion,  continually 
saying  that  he  would  kill  himself  with  a  knife  and  that  his  com- 
rades have  often  prevented  his  furies  and  his  fits  of  violence,  that 
in  his  frenzy  he  even  threatened  to  kill  his  father ;  that  on  account 
of  his  violence  and  his  bad  temper  he  never  wished  to  associate 
with  him  and  that  it  is  probable  that  at  times  he  was  out  of  his 
mind,  that  he  never  knew  him  well  enough  to  form  a  just  opinion, 
and  he  said  that  this  was  all  he  knew,  the  present  testimony  being 
read  to  him  he  said  that  it  was  the  truth,  persisted  therein  and 
declared  that  he  did  not  know  how  to  write  nor  sign.  On  this  in- 
quiry following  the  ordinance. 
Signed:  "Raguet". 

"Henry,  clerk"  (paraph). 

Jean  Louis  Rabigou,  a  soldier  of  Benoist's  company,  gar- 
risoned in  this  jcity,  aged  twenty-five  years,  professing*  the 
catholic,  apostolic  and  Roman  religion,  after  having  sworn  to 


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speak  the  truth  declared  that  he  was  neither  a  relative,  a  connec-» 
tion  nor  a  servant  of  the  parties  arid  that  he  had  been  cited  this 
day  to  testify  to  the  truth  in  response  to  a  notic^' served  on  him  at 
request  of  the  Attorney  General,  which  notice  he  showed  us. 

Testifies  on  the  facts  mentioned  in  the  complaint  of  the 
Attorney  General  of  the  King,  which  was  read  to  him,  that  he 
knows  that  one  SerVinien,  so-called  La  Rochelle,  a  soldier  of  the 
same  company  as  himself,  who  killed  himself  yesterday  morning 
with  his  gun,  was  often  in  extraordinary  passion  and  fury,'  even 
taking  a  knife  to  plunge  it  into  his  stomach  and  whilst  cursing 
and  denying  God,  would  draw  blood  from  it  with  the  kriife,  which 
often  made  the  witness  shudder,  who  prevented  him  from  killiilg 
himself  and  that  the  comrades  of  his  mess  had  also  prevented  him 
from  taking  his  life ;  that  he  often  cursed  and  stormdd  against 
his  father  saying  that  he  would  never  forgive  him,  that  he  thinks 
that  when  that  man  had  drunk  a  few  drams  he  was  out  of  his 
mind,  and  he  and  his  companions  said  so,  which^  he  said,  was  all 
he  knew;  his  testinlony  being  read  to  him,  he  said  it  was  the  truth, 
persisted  therein  and  did  not  ask  for  pay.    Signed :  "Raguet/ ■ 

"JLRabigou". 

"Henry,  clerk'-   (paraph). 

Pierre  Fflhev,  a  soldier  of  Senoist's  company,  aged  twenty- 
three  years,  professing  the  catholic,  apostolic  and  Roman  religion, 
after  having  sworn  to  speak  the  truth,  declared  that  he  was 
neither  a  relative,  a  connection,  nor  a  servant  of  the  parties  and 
that  he  had  been  this  day  cited  to  testify  the  truth  in  response  to 
a  notice  served  on  request  of  the  Attorney  General,  which  notice 
he  presented  to  us. 

Testifies  on  the  facts  mentioned  in  the  complaint  of  the 
Attorney  General  of  the  King,  which  was  read  to  him,  that  he 
was  of  the  same  mess  as  one  Servinien,  so-called  La  Rochelle,  T^ho 
killed  himself  yesterday  morning  with  a  gun,  that  the  said  La 
Rochelle  went  into  fury  and  had  outbursts  of  insanity  always 
saying  that  he  would  kill  and  destroy  himself  and  his  father  too, 
that  he  would  never  forgive  him  for  what  he  had  done  him,  that 
he  often  took  a  knife  to  plunge  into  his  body,  that  he  and  his  com- 
rades had  often  prevented  his  doing  so,  and  that  as  he  was  not  a 
sociable  man  and  that  he  was  not  in  his  right  mind,  he  and  they  did 
not  associate  with  him,  that  they  always  thought  that  he  was  out 
of  his  mind,  which,  he  said,  was  all  he  knew,  and  his  testimony 


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Servinien's  tUdse,  1752  '    '  '  '  295 

being  read  toliimhe  said  that  it  was  the  truth,  persisted  therein 
and  declared  that  he  did  not  know  how  to  write  nor  sign,  where- 
upon inquiry  as  per  ordinance  and  he  did  request  pay. 
Signed: 'Tlaguet". 

"Henry,  clerk"  (paraph). 

Andre  Desjardins,  a  soldier  of  Benoist's  company,  gar- 
risoned in  this  city,  aged  fifty-five  years,  professing  the  catholic, 
apostolic  and  Roman  religion,  after  having  sworn  to  speak  the 
truth,,  declared  that  he  was  not  a  relative,  nor  a  connection,  nor 
a  servant  of  the  parties,  and  that  he  was  cited  on  this  day  on  re- 
quest of  the  Attorney  General  to  testify  the  truth,  which  notice 
he  presented  us. 

Testifies  on  the  facts  mentioned  in  the  complaint  of  the 
Attorney  General,  which  was  read  to  him,  that  one  Servinien, 
so-called  La  Rochelle,  a  soldier  of  their  company  and  of  their 
mess,  killed  himself  yesterday  morning  at  eight. or  nine  o'clock, 
by  blowing  out  his  brains  with  his  gun ;  that  an  hour  before  he  had 
tried  to  kill  himself  with  a  knife  and  threw  it  away,  that  it  ap- 
peared to  him  and  tp  his  comrades  that  he  was  out  of  his  mind, 
that  at  the  canteen  he  went  from  table  to  table  taking  the  bottles 
and  drinking  like  a  demented  man,  that  he  was  prone  to  terrible 
angers,  swearing  that  he  would  destroy  himself  and  his  father  and 
that  his  bad  conduct  often  caused  him  to  be  imprisoned,  that  he 
was  so  unsociable  that  neither  the  witness  nor  any  of  his  comrades 
wished  to  keep  company  with  him,  which,  h^  said,  was  all  he 
knew;  the  present  testimony  having  been  read  to  him  he  said  that 
it  was  the  truth,  persisted  therein  and  declared  that  he  did  not 
know  how  to  write  nor  sign,  whereupon  inquiry  as  per  ordinance. 
Signed:  "Ragruet".  "Henry,  clerk"  (paraph). 


3.    Removal    of   Suicide's    Corpse. 

Proces  Verbal  of  the  Removal  of  the  Corpse  of  Servinien, 
Alibis  La  Rochelle. 
April  19,  1752. 
In  the  year   one   thousand   seven   hundred   and   fifty-two, 
on  the  nineteenth  of  April,  before  noop,  before  us,  Jean  Baptiste 
Raguet,  Councillor  of  the  king  in  the  Superior  Council  of  ^Lou- 
isiana, Commissary  in  this  case,  appeared  M.  the  Attorney  Gen- 
eral of  the  King,  who  told  us  that  he  had  just  been  informed  that 


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the  corpse  of  one  Andre  Servinien,  so-called  La  Rochelle,  which 
was  deposited  in  a  cabin  of  the  King's  hospital  of  this  city,  was 
carried  away  last  night. 

He  is  prosecuting  a  criminal  suit  against  his  memory  to  have 
him  punished  as  homicide  of  himself  to  the  full  rigor  of  the  King's 
ordinances.  • 

Wherefore  he  requested  us  to  go  with  him  and  the  clerk  of 
the  Council  to  the  said  hospital,  where  we  asked  one  Baptiste  and 
two  surgical  students  where  the  corpse  in  question  had  been 
deposited.  They  told  us  that  the  corpse  had  without  doubt  been 
removed  during  the  night  as  it  was  there  last  evening  in  the  cabin, 
in  a  box  which  they  had  laid  on  the  ground  two  days  ago ;  that  they 
do  not  know  nor  have  any  knowledge  whatever  of  who  could  have 
carried  it  away  since  they  do  not  sleep  at  the  hospital.  We  after- 
wards went  to  the  yard  of  the  said  hospital  where  the  said  cabin 
stands,  and  after  a  thorough  examination  we  found  no  break  nor 
breach.  Having  likewise  examined  the  fence  which  surrounds  the 
said  yard  we  saw  nothing  displaced,  and  at  the  same  moment 
appeared  two  Ursuline  nuns  who  are  in  charge  of  the  said  hos- 
pital and  the  sick,  one  of  them  named  Magdelen  and  the  other 
Saint  Xavier;  we  asked  them  if  they  knew  anything  about  the 
removal  of  the  corpse  and  they  said  they  knew  nothing  as  they 
had  gone  back  and  retired  to  their  beds  in  their  monastery,  that 
only  this  morning  at  four  or  five  o'clock  it  was  reported  to  them 
that  the  corpse  was  no  longer  there  and  that  it  had  probably  been 
carried  away  in  the  night  during  the  bad  weather  whilst  it  rained 
and  thundered,  which  was  all  that  we  could  find  out  concerning 
the  said  removal,  wherief  ore  we  have  drawn  up  the  present  proces 
verbal  to  hold  and  serve  as  needs  be,  even  the  sick  having  told  us 
that  they  had  not  perceived  anything. 

Done  at  the  Hospital  the  above  day,  month  and  year. 
Signed:  "Raguet".     "Fleuriau". 

"Henry,  clerk"  (paraph) 


4.    Appointment    of    Curator. 

Appointment  of  a  Curator  to  the  Memory  of  One  Servinien, 

Alias  La  Rochelle. 

April  19,  1752. 

Before  us,  Councillor  Commissary  in  this  case,  the  complaint 

brought  by  M.  the  Attorney  General  of  the  King,  against  one 


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S^vinien's  Case,  175*  297 

Andre  Servinien,  so-called  La  Rochelle,  soldier,  on  date  of  the 
eighteenth  instant,  the  order  of  M.  Michel,  Councillor  of  the 
King  in  his  Councils,  Commissary  General  of  the^  Marine  and  In- 
tendant  (ordonnateur)  of  Louisiana,  below  the  said  complaint, 
of  the  said  day,  the  conclusions  of  the  Attorney  General  of  the 
King,  we  the  above  mentioned  Commissary  considering  that  the 
said  suicide  Servinien  has  no  relatives  in  this  colony,  have  offi- 
cially appointed  one  Pierre  Cecille,  inhabitant  of  this  colony,  who 
will  be  cited  before  us  to  accept  the  said  charge  and  be  sworn. 

Given  at  New  Orleans,  this  nineteenth  of  Aprils  one  thousand 
seven  hundred  and  fifty-two,  in  the  morning. 
Signed:  "Raguet". 

"Henry  (paraphe)  clerk". 

In  the  year  one  thousand  seven  hundred  and  fifty-two,  on  th^ 
nineteenth  day  of  April,  at  two  o'clock  in  the  afternoon  appeared 
before  us,  above  named  and  undersigned  commissary,  one  Pierre 
Cecille,  farmer,  residing  in  this  city,  officially  appointed  by  us  as 
curatot*  to  the  corpse  and  memory  of  one  Andre  Servinien,  so^ 
called  La  Rochelle,  soldier  garrisoned  in  this  city,  on  account  of 
the  criminal  prosecution  extraordinarily  instituted  by  us,  on  re- 
quest of  the  Attorney  General  of  the  King,  said  Cecille,  here 
present,  has  voluntarily  accepted  the  said  charge  of  curator  and 
has  sworn  to  defend  well  and  faithfully  the  memory  of  the  said  . 
Servinien,  of  which  act  was  passed  and  signed  on  the  above  men- 
tioned day,  month  and  year  and  have  signed :  "P.  Cecille". 
"Raguet"  "Henry  (paraph)  clerk". 


5.    Re- Examination    of    Witnesses    Heard    Against    Servinien. 

April  20,  1752. 
In  the  year  one  thousand  seven  hundred  and  fifty-two,  on 
the  twentieth  day  of  April,  ii>  the  afternoon,  before  us,  Jean  Bapr 
tiste  Raguet,  Councillor  in  the  Superior  Council  of  Louisiana,  ap- 
peared the  Attorney  General  of  the  King,  who  told  us  that,  in 
execution  of  our  order  of  the  said  day,  in  the  forenoon,  he  had 
cited  one  Joseph  Odoy,  Jean  Louis  Rabidou,  Pierre  Filhev  and 
Andre  Desjardins,  soldiers  of  Benoist's  company,  detached  troops 
of  the  marine  maintained  in  this  colony,  and  witnesses  heard  in 
the  first  inquiry  conducted  at  his  request,  on  the  eighteenth  of 
the  present  month  against  one  Andre  Servinien,  so-called  La  Ro- 


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chelle,  soldier  of  this  said  colhl^'any,  'accusield  of  having  blown  off 
his  head  with  hfs  gUli,  to  be  re-exaihined  in  their  testimony 
thiroiigh  hblicb  served  oh  them  by  Le  Norman,  sheriff,  on  this  day, 
which  notice  his  irt'es^iited  to  tlfi  ahd  demanded  that  he  be  able  to 
prbceM  to 're-exaihiha'tiion  of  ^tnesses. 

Whei^\ipon  A*'e  gaVe  a  tertificafe  to  said  Attorney  General 
of  his  appear^fite  aiid  requisition  arid' ordered  that  we  immediate- 
ly proceed  to  the  re-€l!xaiiiiniation  of  the  witnesses  and  the  said 
Attorney  General  of  the  King  retired.' 

And  on  the  ttiomerit  appeared  Joseph  Odoy,  soldier  of  Be- 
noist's  company,  first  witness  testifying  before  us  in  the  inquiry 
conducted  by  us  on  request  of  the  said  Attorney  General.  After 
he  had  taken  an  okth  to  speak  the  truth,  we  read  to  Odoy  the 
testimony  given  by  him  at  the  said  inquiry  and  after  having  heard 
it  he  said  it  Was  tlie'truth  and  that  he  does  hot  wish  to  add  to  nor 
take  anything  ftotti  it  and  persisted  therein;  the  present  re-ex- 
amitiatibn  beinig  read  to  him  he  also  persisted  and  declared  that 
he  did  not  know  how  to  write  nor  sign,  whereupon  inquiry  as  per 
ordinance. 
Signed:  "Raguet".' 

"Henry  (paraph)  clerk". 

Also  appeared  Jfean  Louis  Rabidou,  ia  soldier  of  Benoist'a 
company  garrisoned  in  this  city,  secbnd  Witness  testifying  in  the 
said  inquiry,  to  Whom,  afteir  he  had  sworn  to  speak  the  truth,  we 
read  the  testimony  giveh  by  him  at  the  said  inquiry,  and  after 
having  heard  it!,  he  said  that  it  is  the  truth  and  that  he  does  not 
wish  to  add  to  nor  take  from  it  and  that  he  persists  therein.  The 
present  re-^xamination  being  read  to  him  he  also  persisted  and 
declared  that  he  did  not  know  how  to  read  nor  sign,  whereupon 
inquiry  as  per  ordinance  and  aftei;wards  signed: 

"J,  L.  Rabidou" 
''Z^g\j^        \  V.  '     ,.         '  i-  /.,   "Henry  (paraph)  clerk". 

Also  appeiared  Pierre  ^ilhev,  a  sdldier  of  BenoiSt's  company 
garrisoned  in  this  city,  third  Witness' heard  in  the  said  inquiry,  to 
whom,  after  he  had  sworn  to  spieak  tile  truth,  we'  read  the  testi- 
m6riy  giyi6h  by  him  at  the  said  inquiry,  iand  aftfer  having  heard 
it  he  said  that  it  is  wholly  true,^that  he  has'  nothing  to  add  to  nor 
to  ^ice  f  roni  it  and  that  he  persists  therein?  The  present  re- 
examination teing  read  to  him  he  also  ipersisted  and  declared  that 


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he  did  not  know  how  to  write  nor  sign,  whereupon  inquiry  ab 
per  ordinance.  Signed :  "Raguet". 

.  "Henry,  clerk"  (paraph) 

Also  appeared  Andre  Desjardins,  a  soldier  of  Benoist's  com- 
pany garrisoned  in  this  city,  fourth  witness  heard  in  the  said  in- 
quiry, to  whom  was  read,  after  he  had  sworn  to  speak  the  truth, 
the  testimony  given  by  him  at  the  said  inquiry  and  after  having 
heard  it,  he  said  that  it  is  true  throughout,  that  there  is  nothing 
to  add  to  it  nor  to  take  from  it  and  he  persisted  therein ;  the  pres- 
ent re-examination  being  read  to  him  he  persisted  in  it  and  de- 
clared that  he  did  not  know  how  to  write  nor  sign,  whereupon  in- 
quiry as  per  ordinance. 
Signed :  "Raguet".  "Henry,  clerk''  (paraph) 


6.    Interrogation    of   the    Curator    of    Servinien. 

April  20,  1752. 

In  the  year  one  thousand  seven  hundred  and  fifty-two,  on  the 
twentieth  day  of  April,  before  noon,  before  us,  J^an  Baptiste 
Baguet,  Councillor  of  the  King  in  his  Superior  Council  of  the 
Province  of  Louisiana,  Commissary  appointed  on  this  case,  being 
in  the  Registry  of  the  Superior  Council  of  the  said  province,  ap- 
peared one  Pierre  Cecille,  residing  in  this  city,  officially  ap- 
pointed by  us  as  curator  to  the  memory  of  one  Andre  Servinien, 
so-called  La  Rochelle,  a  solder  in  one  of  the  companies  of  detached 
troops  of  the  marine  maintained  in  this  colony,  who  committed 
suicide  and  the  said  curator  has  told  us  that  he  is  ready  and  offers 
to  undergo  interrogation  on  the  facts  shown  by  the  inquiry  con- 
ducted by  us  on  demand  of  the  Attorney  General  of  the  King 
against  the  memory  of  Andre  Servinien,  requesting  that  it  please 
us  to  give  him  a  certificate  of  his  appearance  and  to  proceed  to 
his  interrogation,  and  has  signed :  "Cecile".  Whereupon  we  have 
given  certificate  to  said  Pierre  Cecille  in  the  said  names  of  his 
appearance  and  above  demand  and  have  ordered  that  we  imme-» 
diately  proceed  to  the  interrogation  of  the  said  curator, 

And  on  the  moment  the  said  Pierre  Cecille  was  sworn  to 
speak  the  truth  on  the  facts  on  which  it  will  please  us  to  inter- 
rogate him. 

This  done,  we  interrogated  him  on  his  age,  qualifications  and 
domicile; 


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He  said  his  name  is  Pierre  Cecille,  residing  in  this  city,  where 
he  is  usually  domiciled,  aged  about  forty-five  years,  professing  the 
catholic,  apostolic  and  Roman  religion. 

Interrogated  if  he  knows  for  what  cause  he  has  been  ap- 
pointed curator  in  this  occasion ; 

He  answered  that  as  one  Andre  Servinien,  a  soldier  of  a 
company  of  detached  troops  of  the  marine,  was  found  in  the  place 
where  the  privies  were  formerly  situated  in  one  of  the  buildings 
of  the  barracks/  who,  it  is  thought,  killed  himself  with  his  gun, 
has  no  relatives  in  this  colony  and  he  was  appointed  by  judgment 
rendered  yesterday  official  curator  to  the  said  Andre  Servinien, 
who  is  no  more,  his  body  having  been  carried  off  during  the  night 
between  the  eighteenth  and  the  nineteenth,  as  he  heard  through 
public  rumor. 

Interrogated  if  he  knew  for  what  cause  for  which  the  said 
soldier  killed  himself. 

He  answered  that  he  knows  nothing  of  it,  but,  that  as  the  said 
soldier  was  of  unsound  mind,  having  spells  of  anger,  fury  and 
frenzied  passion,  it  is  not  surprising  that  he  took  this  occasion 
to  kill  himself. 

Interrogated  if  he  had  sometimes  seen  him  in  his  spells  he 
answered  that  he  had  not  but  that  he  had  heard  his  Comrades 
say  that  he  was  a  lunatic  and  that  they  had  often  reprimanded 
him  for  this  cause,  but  that  he  could  not  understand  reason  when 
his  fury  took  possession  of  him. 

Interrogated  if  he  had  not  heard  that  he  had  had  some 
disagreement  with  one  of  his  comrades  who  might  have  taken 
this  occasion  to  kill  him. 

He  answered  that  he  had  not  and  that  he  does  not  think  that 
any  of  his  comrades  killed  him  as  they  avoided  him  on  account  of 
his  frenzies,  that  he  often  went  out  of  his  way  for  that  purpose, 
and  that  it  was  particularly  when  he  had  drunk  and  even  after 
his  wine  had  finished  working  he  was  more  of  a  lunatic  than 
previously. 

Interrogated  if  he  had  anything  personal  to  say  concerning 
the  charge  against  or  the  discharge  of  Servinien's  memory,  he 
answered  that  he  has  nothing  else  to  say  unless  it  be  that  he  was 
a  lunatic  and  that  his  act  was  caused,  in  his  opinion,  more  by 
insanity  than  by  despair,  all  the  more  so  since  it  appeared  from 
the  testimony  that  he  spoke  only  of  killing  his  father  and  him- 


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Servimen*8  Case,  1752  301 

self  afterwards  and  that  he  had  even  tried  to  stab  himself  in  the 
stomach  with  a  knife,  which  his  comrades  often  prevented. 

The  present  interrogation  having  been  read  to  him  he  said 
that  his  answers  are  the  truth,  he  persisted  thereon  and  signed : 
"Cecile". 

*'Raguet". 

Let  it  be  communicated  to  the  Attorney  General  of  the  King. 
At  New  Orleans,  May  4,  1752. 

Signed:  "Raguet" 


7.    Confrontation  of  Witnossot  Hoard  Against  Sorvinion. 

April  21, 1752. 

Confrontation  conducted  by  us,  Jean  Baptiste  Raguet,  Coun- 
cillor of  the  King^  in  his  Superior  Council  of  the  province  of  Lou- 
isiana, Commissioner  appointed  on  this  case,  on  request  of  the 
Attorney  General  of  the  King,  plaintiff  and  accuser  against  the 
memory  of  one  Andre  Servinien,  so-called  La  Rochelle,  a  soldier  of 
a  company  of  detached  troops  of  the  Marine  maintained  in  this 
colony,  accused  of  having  taken  his  life,  of  the  witnesses  who 
testified  at  the  inquiry  conducted  by  us  on  the  eighteenth  of  the 
present  month,  and  this  in  execution  of  our  sentence  of  the  nine- 
teenth of  the  present  month,  in  which  confrontation  we  proceeded 
as  follows : 

On  April  twenty-first,  one  thousand  seven  hundred  and  fifty- 
two,  at  three  o'clock  in  the  afternoon,  appeared  before  us  Pierre 
Cecille,  Curator  appointed  to  the  memory  of  Andre  Servinien,  so- 
called  La  Rochelle,  a  soldier  of  Benoist's  company,  a  detached 
troop  of  the  Marine  maintained  in  this  colony,  at  present  gar- 
risoned in  this  city,  charged  with  having  committed  suicide, 
with  whom  we  confronted  Joseph  Odoy,  a  soldier  of  the  said 
company,  first  witness  at  the  inquiry,  and  after  the  curator  as 
well  as  the  witness  had  been  sworn  to  speak  the  truth  and  chal- 
lenged to  say  if  they  knew  each  other,  said  viz : 

The  said  Curator  that  he  does  not  know  the  said  witness, 
and  the  said  witness  that  he  knows  Pierre  Cecille  by  sight  as  a 
resident  of  this  city.  After  which  we  ordered  the  clerk  of  the 
said  Council  to  read  the  first  articles  of  the  testimony  of  the 
witness  stating  his  age,  profession  and  residence  and  his  decla- 
ration that  he  is  not  related  to  the  said  accused,  nor  to  the  said 
Curator.    The  Curator  being  challenged,  as  such,  to  state  any 


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302  The  Louisiana  Historical  Quarterly 

objection  to  the  testimony  of  the  said  witness  immediately,  or  that 
in  default  of  so  doing  no  exception  will  be  considered  after  testi- 
mony and  re-examination  shall  have  been  read  to  him  as  per  or- 
dinance which  we  made  him  understand ; 

To  which  the  said  Curator  answered  that  he  had  no  objec- 
tion to  make  against  the  said  witness  no  more  than  the  said  wit- 
ness against  the  said  Curator. 

This  done  we  had  the  testimony  and  re-ex:amination  read  to 
the  said  witness  in  presence  of  the  said  Curator  for  the  accused, 
the  said  witness  said  that  his  testimony  was  the  truth  and  thus 
maintained  tq  tti^.said  Curator,  and  th;^t  he.  meant  to  speak  of 
the  accused  in  his  testimony  and  re-examination,  and  persisted 
therein,  and  the  said  Curator  said  that  he  did  not  take  exception 
to  the  witness's  testimony  and  believes  it  to  be  the  truth. 

The  present  confrontation  being  read  to  the  said  Cecille, 
Curat9r,  and  to  the  said  witness,  each  persisted  in  what  he  had 
said  and  the  said  Curator  signed,  but  not  the  said  witness,  who 
declared  that  he  did  not  know  how  to  write- lior  sign,  whereupon 
inquiry  as  per  ordinance. 
Signed:  "Cecile'V  "Raguet". 

Then  appeared  before  us,  in  presence  of  the  Curator,  Jean 
Louis  Rabideau,  a  soldier  of  Benoist's  company,  second  witness 
testifying  at  the  said  inquiry  and  after  the  said  Curator  as  well 
as  the  said  witness  had  been  sworn  to  speak  the  truth,  and  chal- 
lenged to  say  if  they  knew  each  other,  they  said  that  they  were 
not  acquainted  but  that  they  both  knew  the  said  suicide,  after 
which  we  ordered  our  clerk  of  Council  to  read  the  first  articles  of 
the  testimony  of  the  said  witness  stating  his  name,  profession  and 
residence  and  his  declaration  that  he  is  neither  a  relative,  a  con- 
nection, attendant  nor  servant  of  said  accused,  and  the  Curator 
being  challenged  to  state  any  objections  to  said  witness  imme- 
diately, otherwise,  and  in  default  of  so  doing,  none  would  be  ac- 
cepted after  the  testimony  and  re-examination  were  read  to  him 
as  per  ordinance,  which  we  gave  him  to  understand. 

To  all  of  which  the  said  Curator  and  the  said  witness  answer- 
ed that  they  had  no  objections  to  make  to  each  other,  in  any  way 
whatsoever. 

This  done  we  read  the  testimony  and  re-examination  of  the 
said  witness,  in  presence  of  the  said  Curator,  the  witness  saying 
that  his  testimony  is  the  truth^and  thus  maintained  it  to  the  said 


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Servinien'e  Case,  1752  803 

Curator  and  that  it  was  of  the  accused  he  meant  to  speak  in  his 
testimony  and  his  re-examination  and  therein  persisted. 

To  which  the  said  Curator  answered  that  he  thinks  that  all 
that  the  said  witness  said  is  the  truth  as  well  as  himself  in  his  in- 
terrogation, knowing  the  said  accused  as  a  man  often  unsound 
of  mind  and  a  lunatic  and  the  said  witness  said  that  he  thought 
the  same. 

The  present  confrontation  being  read  to  the  said  Curator  and 
to  the  said  witness  both  persisted  therein  in  what  concerned  each 
and  the  said  Curator  signed,  but  not  the  said  witness,  who  de- 
clared that  he  did  not  know  how, to  write  nor  sign,  whereupon  in- 
quiry as  per  ordinance.     Signed:  "Cecile". 

"Raguet''. 

Then  appeared  before  us,  in  the  presence  of  the  said  Curator, 
Andre  Desjardins,  a  soldier  of  Benoist's  company,  the  fourth  wit- 
ness testifying  at  the  said  inquiry  and  after  th^  said  Curator  as 
well  as  the  said  witness  had  been  sworn  to  speak  the  truth,  chal- 
lenged to  say  if  they  knew  each  other,  they  said  they  knew  each 
other  very  well,  namely  that  the  Curator  knew  Desjardins  to  be 
a  soldier  of  Benoisf  s  company  and  the  said  soldier,  knew  the 
said  Cecile,  Curator,  to  be  a  resident  of  this  city,  and  that  they 
had  both  known  the  said  Andre  Servinien,  so-called  La  Rochelle 
accused  of  having  killed  himself,  to  be  a  soldier  of  Benoist's  said 
company,  after  which  we  ordered  the  clerk  of  the  Council  to 
read  the  first  articles  of  the  testimony  of  the  said  witness  stating 
his  name,  profession  and  residence  and  his  declaration  that  he  is 
not  a  relative,  a  connection  nor  a  servant  of  the  said  accused  and 
we  challenged  the  said  Curitor  to  state  immediately  any  objection 
against  the  said  witness,  otherwise,  and  failing  to  do  so  at  this 
moment  none  will  be  accepted  after  his  testimony  and  re-exami- 
nation shall  have  been  read  to  him  as  per  ordinance  which  we 
made  him  understand. 

To  which  the  said  Curator  and  the  said  witness  said  that  they 
had  no  objections  to  make  to  each  other. 

This  done  we  had  the  testimony  and  the  re-examination  read 
to  the  said  witness,  in  the  presence  of  the  said  Curator;  the  said 
Witness,  said  that  his  testimony  and  re-examination  are  the  truth 
and  thus  maintained  to  the  said  Curator,  and  that  it  was  really  of 
the  accused  that  he  meant  to  speak  in  his  testimony  and  re-ex- 
amination and  persisted  therein. 


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To  which  the  said  Curator  answered  that  he  had  naught  to 
answer  and  that  he  thinks  that  the  said  testimony  of  the  said 
witness  is  just. 

The  present  confrontation  and  testimony  being  read  to  the 
said  Curator  and  to  .the  said  witness,  each  persisted  therein  in 
what  concerned  him  and  the  said  Curator  signed,  but  not  the  said 
Des jar  dins,  witness,  who  declared  that  he  did  not  know  how  to 
write  nor  sign,  whereupon  inquiry  as  per  ordinance. 

Signed:  "Cecile" 

"Raguet". 

Next  appeared  before  me,  above  mentioned  Commissioner,  in 
the  presence  of  the  said  Cecille,  Curator,  one  Pierre  Filhev,  third 
witness  testifying  at  the  said  inquiry,  and  after  the  said  Curator 
and  witness  had  been  sworn  to  speak  the  truth,  challenged  to  say 
if  they  knew  each  other  they  said  they  knew  each  other  very 
well,  as  they  also  knew  the  said  Andre  Servinien,  so-called  La 
Rochelle  to  be  a  soldier  of  Benoist's  company. 

After  which  we  ordered  the  clerk  of  the  Council  to  read  the 
first  articles  of  the  testimony  of  said  witness,  containing  his  age, 
profession  and  residence  and  his  declaration  that  he  is  neither  a 
relative,  a  connection  nor  a  servant  of  the  said  accused  nor  of  the 
said  Curator. 

We  challenged  the  said  Curator,  as  such,  to  state  immediately 
any  objection  he  might  wish  to  make,  otherwise,  and  in  default 
of  so  doing  at  this  moment,  none  will  be  accepted  after  the  testi- 
mony and  the  re-examination  shall  have  been  read  to  him  as  per 
prdinance  which  we  made  him  understand. 

To  which  the  said  Curator  and  the  said  witness  said  that  they 
had  no  objections  to  offer  each  other  in  any  way. 

This  done  we  read  the  testimony  and  the  re-examination  of 
the  said  witness  in  the  presence  of  the  said  Curator,  the  witness 
said  that  his  testimony  and  re-examination  are  true  and  thus 
maintained  to  the  said  Curator,  and  that  it  is  really  of  the  accused 
he  meant  to  speak  in  his  testimony  and  re-examination  and  therein 
persisted. 

And  the  said  Curator  answered  that  he  believed  all  that  the 
said  witness  had  said  in  his  testimony  and  re-examination  to 
be  true. 

The  present  confrontation  being  read  to  the  said  Curator  and 
to  the  said  witness,  each  persisted  in  what  concerned  him  and  the 


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Servinien'8  Case,  1752  306 

said  Curator  signed,  but  not  the  said  witness,  who  declared  that 
he  did  not  know  how  to  write  nor  sign,  whereupon  inquiry  as 
per  ordinance 

Signed:  "Cecile".  "Raguet". 


8.   Conclufion    of   tho    Attorney    Qonoriil. 

May  5,  1752. 

The  Attorney  General  of  the  King  plaintiff  and  accuser 

against 
The  Memory  of  one  Andre  Servinien,  accused  of  having 
^  suicided  by  shooting  himself. 

Before  us,  Commissioner  on  this  case,  all  the  proceedings  of 
this  prosecution  instituted  by  us,  the  whole  examined,  my  opinion 
is,  without  prejudice  to  yours,  Gentlemen,  that  the  memory  of 
the  said  Servinien,  so-called  La  Rochelle,  a  soldier  of  this  garrison, 
be  discharged  of  the  accusation,  inasmuch  as  the  testimony  of 
the  witnesses  in  this  affair  shows  that  the  accused  was  often  un- 
sound of  mind,  getting  into  extraordinary  furies,  so  far  as  want- 
ing to  kill  himself  and  even  threatening  to  kill  his  father,  and 
that,  during  the  whole  morning  of  the  day  on  which  he  shot  him- 
self, he  had  shown  signs  of  his  fury  and  insanity. 
At  New  Orleans,  this  fifth  of  May,  1752. 

Signed:  "Raguet". 
On  reverse  of  document : 
"To  Mr 

Mr  Raguet,  Councillor, 
Police  Judge 

At  New  Orleans. 


9.    Intorrogation  of  Curator  in  Opon  Court. 

Criminal  Session  of  the  Superior  Council, 
May  6,  1752. 
Paraphed 
MICHEL 
May  6,  1752. 
Interrogation  of  Curator  to  Memory  of  Servinien,  so-called 

La  Rochelle. 
Where  were  assembled    Messrs    de   Vaudreuil,    Governor; 
Michel,  Commissary  General  of  the  Marine,  Intendant  and  First 
Judge;  Sieur  and  Councillor  de  Membrede,  Major  of  New  Orleans; 


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306  The  Louisiana  Historical  Qvxirterly 

Raguet,  Councillor;  Le  Breton,  de  Lalande,  Kemion  and  Lafre- 
niere,  Councillors  assessors. 

On  information  of  the  Attorney  General  of  the  King  against 
the  memory  of  Andre  Servinien,  so-called  La  Rochelle,  a  soldier  of 
Benoist's  company,  accused  ^f  having  committed  suicide,  and  also 
Pierre  Cecille,  Curator  appointed  to  the  memory  of  the  said  ac- 
cused. 

Before  us  the  criminal  prosecution  extraordinarily  instituted 
against  the  said  Servinien :  The  Council  has  ordered  that  the  said 
Pierre  Cecile,  Curator,  be  cited  to  be  interrogated.  This  done, 
after  he  had  sworn  to  speak  the  truth,  we  interrogated  him  on  his 
age,  qualifications  and  residence. 

He  said  that  he  was  named  Pierre  Cecile,  inhabitant  of  this 
city,  aged  forty-five  years,  professing  the  Catholic,  Apostolic  and 
Roman  religion  and  that  he  has  been  appointed  Curator  to  the 
memory  of  Andre  Servinien. 

Signed:  "Michel". 
Michel. — First  Judge  Conducts  the  Examination : 

Interrogated  if  he  knows  anything  besides  what  was  asked  in 
his  interrogation,  he  said  he  had  nothing  else  to  say  but  what  he 
had  answered. 

Interrogated  if  it  is  true  that  the  accused  said  that  he  wished 
to  kill  his  father,  he  answered :  Yes,  that  he  had  truly  heard  him 
say  in  his  folly  that  if  he  returned  to  France  he  would  kill  his 
father  and  that  he  had  even  tried  to  kill  himself  several  times. 

The  present  interrogation  being  read  to  him,  he  said  that  it  is 
the  truth,  persisted  therein  and  signed:  "Cecile",  "Vaudreuil", 
"'Michel",  "D'Auberville",  "Delalande",  "Huchet  de  Kemion",  "Le 
Bretton". 


10.    Final   Judgment. 

Criminal  Session,  May  6,  1752. 
Paraphed 
MICHEL 

Judgment  of  Absolution  of  Memory  of  Servinien,  so-called 

La  Rochelle. 
Were  present  Messrs  de  Vaudreuil,  Governor ;  Michel,  Com- 
missary General  of  the  Marine,  Intendant   (Ordonnateur)  and 
First  Judge;  Dauberville,  Commissary  of  the  Marine,  second 
Councillor;  de  Membrede,  Major  of  New  Orleans;  Raguet,  Coun- 


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Servinien'8  Case,  1752  307 

cillor ;  Le  Bretton,  Delalande,  Kernion,  and  Laf  reniere,  Councillors 
assessors. 

On  demand  of  the  Attorney  General  of  the  King,  plaintiff  and 
accuser  against 

One  Andre  Servinien,  so-called  La  Rochelle,  a  soldier  of  Be- 
noist's  company,  deceased  and  accused  of  having  blown  off  his 
head  with  his  gun. 

And  Pierre  Cecille,  resident,  appointed  curator  to  the  memory 
of  said  accused : 

Before  us  the  proces  verbal  of  the  inquest  held  at  the  place 
where  he  killed  himself,  by  the  Attorney  General,  accompanied  by 
the  clerk  of  the  Council  on  the  seventeenth  of  last  April, 

The  petition  presented  by  the  said  Attorney  General  of  the 
King  and  the  order  below  it  granting  permission  to  prosecute 
criminally  the  assassination  or  homicide  before  M.  Raguet,  Coun- 
cillor, 

Appointment  of  Curator  to  corpse,  and  inquiry,  re-examina- 
tion, interrogation  and  confrontation  the  whole  on  date  of  the 
eighteenth  of  the  said  month. 

Inquiry  of  the  said  day  of  four  witnesses  who  testified,  the 
appointment  of  Pierre  Cecille,  a  resident,  as  curator  to  the  corpse 
on  the  nineteenth  of  the  said  month,  the  curator  being  sworn  on 
that  day, 

Interrogation  of  Pierre  Cecille,  curator,  on  the  twentieth  of 
the  said  month, 

Re-examination  of  the  witnesses  on  the  said  day. 

Confrontation  of  the  said  witnesses  who  testified  at  the  said 
inquiry  with  Pierre  Cecille,  curator,  on  the  twentieth  of  the  said 
month. 

The  proces  verbal  of  the  removal  of  the  corpse  of  the  nine- 
teenth of  the  said  month, 

The  conclusions  of  the  Attorney  General  of  the  King  on  this 
day,  the  whole  seen  and  examined,  the  Council  has  rendered  a 
decision,  resulting  from  the  inquiry  that  the  said  Andre  Servinien, 
so-called  La  Rochelle,  was  not  sound  of  mind,  being  a  lunatic, 
and  subject  to  fits  of  fury,  has  discharged  his  memory  of  the  said 
charge. 

Given  in  the  Council  Chamber,  May  sixth,  one  thousand  seven 
hundred  and  fifty-two. 

Signed:    "Vaudreuil".    "Michel".    "D'auberville".    "Delalande". 
"Huchet  de  Kernion".  "Raguet".  "Le  Bretton". 


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808  The  Louisiana  Historical  Quarterly 

Original  Text. 

Proems  Verbal  of  Judicial   Visit  to  Corpso  of  Suicida. 

17«  avril  1752. 

Original  Text: 

Proces  verbal  of  judicial  inquest  of  Attorney  General  Fleuriau 
and  Clerk  Henry  upon  the  suicide  of  Andre  Servinien. 

Lan  mil  sept  cent  cinquante  deux  le  dix  septieme  jour  d'avril 
dix  heures  du  matin  nous  Francois  Fleuriau,  Procureur  General 
du  Roy,  au  Conseil  Superieur  de  la  Province  de  la  Louisianne  sur 
lavis  qui  nous  a  6t6  donn6  par  le  Sr.  Francois  Simare  de  Bellisle, 
garcon  major  des  trouppes  en  cette  ville  quil  y  avoit  un  soldat  dans 
le  quartier  des  cazernes  du  cote  de  lintendance  qui  s'etoit  cass6 
la  teste  dun  coup  de  fusil.  Nous  nous  sommes  transportes  dans 
les  quartier  ou  etant  entre  dans  la  premiere  cour  accompagne  du 
Gref f ier  du  Conel  Lon  Nous  a  conduit  dans  une  autre  petite  cour 
ou  etoient  les  latrines  avons  vu  un  cadavre  etandu  sur  le  dos  avec 
son  fusil  entre  les  jambes  at  un  mauvais  couteau  a  la  gachette  du 
dit  fusil,  lequel  est  soldat  Lon  Nous  a  dit  sapeller  Andre  Servinien 
dit  La  Rochelle,  soldat  de  la  Compagnie  de  Benoist  ayant  tout  le 
crane  enleve  et  la  cervelle  sautee  plus  d'a  un  pas  de  distance  de 
sa  teste  et  avons  vu  des  marques  de  balles  contre  le  mur  du  dit 
endroit,  ce  qui  nous  a  fait  juger  que  led,  soldat  sest  cass6  la  teste 
etant  debout  le  canon  aparement  appuye  contre  le  front  et  se  Sera 
servy  de  son  pied  pour  f aire  lacher  la  gachette  du  fusil  ledt  fusil 
encore  etendu  entre  ses  jambes,  ensuite  de  quoy  avons  ordonne  de 
le  f  aire  transporter  dans  Lhopital  Royal  de  cette  ville  pour  le  f  aire 
soller  et  instruire  le  proces  audt  cadavre  a  notre  requete  et  avons 
dress^le  present  proces  verbal  pour  servir  et  valloir  a  ce  que  de 
raison  a  la  Nouvelle  Orleans  les  susdits  jour  mois  et  an. 

Fleuriau. 

Henry  Greff  (paraphe). 


No.  2. 

N'.  1303. 

Information. 

Information  Sur  le  Suicide  du  Nomme  AndrS  Servinien. 

Information  faite  par  nous  Jean  Bte  Raguet  Conseiller  du 
Roy  au  Conseil  Superieur  de  la  Province  de  la  Louisianne  a  la 


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Servinien'8  Case,  1752  809 

requete  de  Monsr  Le  Procureur  General  du  Roy  demandeur  et 
accusateur  centre  la  memoire  du  soldat  nomm6  Andr6  Servinien 
did  La  Rochelle  accuse  de  setre  omicid^  et  d^truit  dun  coup  de  fusil 
dans  la  teste,  a  laquelle  information  avons  procedS  ainsy  quil 
ensuit  tant  des  vies  et  moeurs  du  dit  soldat  que  de  son  omicide. 

Du  dix  huit  Avril  mil  sept  cent  cinquante  deux  trois  heures  de 
relev6e 

Joseph  Odoy  soldat  de  la  Compagnie  de  Benoist  en  garrison 
en  citte  ville  age  de  vingt  six  ans  prof essant  la  religion  Catholique 
apostolique  et  Romaine,  lequel  a  pris  serment  par  luy  preste  de 
dire  verite  a  declare  n-etre  parent  alliS  ny  domestique  des  parties 
et  quil  a  et4  assigne  a  ce  jour  pour  dSposer  v^rit^  a  la  requete  de 
M.  Le  Procureur  G6n6ral  du  Roy  suivan  lexploit  dassignation  quil 
nous  a  represents 

Deux^ — Depose  sur  les  f  aits  mentionnes  en  la  plainte  de  M.  Le 
Procureur  General  du  Roy  dont  luy  avons  fait  f aire  lecture  que  le 
nomm6  La  Rochelle  soldat  de  so  Compagnie  et  de  leur  chambr6e 
hier  au  matin  sur  les  huit  a  neuf  heures  du  matin  se  tua  luy  meme 
avec  son  fusil  aux  commoditSs,  que  luy  meme  dSposa  sur  ee  quoy 
Ion  luy  did  f  ut  le  voir  en  raison  de  chercher  de  leau  au  f  leuve  et  le 
trouva  mort,  qu'une  heure  avant  que  ce  coup  arriva  ce  meme 
soldat  avoit  pris  un  couteau  en  disant  quil  vouloit  se  d6truire  luy 
meme  que  tous  les  jours  sitost  qiul  etoit  un  peu  pris  de  boisson  ou 
quil  avoit  bu  in  fillet  il  etoit  dans  des  coleres  terribles  disant 
tou jours  quil  se  tueroit  a  coups  de  couteau  que  luy  et  ses  cama- 
rades  ont  souvent  empesche  ses  furies  et  ses  transports  et  ses 
violences,  que  meme  dans  ses  grandes  furies  il  menacoit  de  tuer 
son  pere,  que  par  toutes  ses  violences  et  son  mauvais  caractere  il 
ne  la  jamais  voulu  frequenter  et  quil  se  peut  que  quelque  fois  son 
esprit  fut  ecartS  quil  ne  la  jamais  assez  connu  pour  en  juger  au 
juste,  qui  est  tout  ce  quil  a  dit  scavoir  lecture  a  luy  faite  de  la 
pr6sente  deposition  a  dit  icelle  contenir  verit6  y  a  persists  et  de- 
clare ne  scavoir  ecrire  ny  signer  de  ce  enquis  suivant  lordce. 

Raguet 
Henry  Gref  f . 

Troia^ — Jean  Louis  Rabigou  soldat  de  la  Compagnie  de  Be- 
noist en  garrison  en  citte  ville,  age  de  vingt  cinq  ans,  professant 
la  religion  Catholique,  apostolique  et  Romaine  lequel  apres  ser- 
ment par  luy  presto  de  dire  verit6  a  d6clar6  n'etre  parent,  alli6  ny 
domestique  des  parties  et  quil  a  et6  assign^  a  ce  jour  deposer  verit6 


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310  The  Louisiana  Historical  Quarterly 

a  la  requete  de  M.  Le  Procureur  General  du  Roy  suivant  I'exploit 
dassignation  quil  nous  a  represents  et  depose  sur  les  faits  men- 
tionnSs  en  la  plainte  de  M.  Le  Procureur  General  du  Roy  dont 
luy  fait  faire  lecture  quil  a  connoissance  que  le  nommS  Servinien 
did  La  Rochelle  soMat  de  la  meme  compagnie  lequel  sest  tu6  hier 
au  matin  avec  son  fusil  se  mettoit  fort  souvent  dans  des  coleres  et 
des  furies  extraordinaires  et  prenant  meme  un  couteau  pour  se 
le  porter  dans  lestomac  et  jurant  et  reniant  dieu  jusqu'a  faire 
sortir  du  sang  avec  son  couteau  de  son  estomac,  ce  qui  a  plusieurs 
f ois  fait  fr6mir  luy  d6posant  quil  lempeschoit  de  se  d6truire,  que 
les  camarades  de  la  chambre  lont  aussy  empesch6  de  se  d6truire 
que  souvent  il  juroit  et  tempestoit  contre  son  pere  disant  quil  ne 
luy  pardonneroit  jamais  quil  croit  que  quand  cet  homme  avoid 
bu  quelques  fillets  il  avoit  Tesprit  egarS  et  que  luy  et  ses  camarades 
le  disoient  qui  est  tout  ce  quil  a  dit  scavoir  lecture  a  luy  faite  de 
so  deposition  adit  quelle  contient  ve6rit6  y  a  persists  a  sign6  et 
na  requis  salaire. 

W  Rabigou 
Raguet 

Henry  Greff 

Pierre  Filhev  soldat  de  la  Compagnie  de  Benoist  ag6  de  vingt 
trois  ans  professant  la  religion  Catholique,  apostolique  et  Ro- 
maine  lequel  apres  serment  par  luy  presto  de  dire  verit6  a  dSclarS 
n'etre  parent  alliS  ny  domestique  des  parties  et  quil  a  et  assign^ 
a  ce  jour  pour  d6poser  verity  a  la  requete  de  M.  Le  Procureur 
General  du  Roy  suivant  Texploit  dassignation  quil  nous  a  repr6- 
sent6. 

Cinq^ — Depose  sur  les  faits  mentionn6s  en  la  plainte  de  M.  Le 
Procureur  General  du  Roy  dont  luy  avons  fait  faire  lecture  quetant 
de  la  chambre  du  nomm6  Servinien  dit  La  Rochelle  soldat  qui  sest 
tu6  hier  au  matin  dun  coup  de  fusil  le  dit  La  Rochelle  se  mettoit 
dans  des  furies  et  transports  de  folie  en  disant  toujours  quil  se 
perdroit  et  dStruiroit  luy  meme  et  son  pere  aussy,  quil  ne  luy 
pardonneroit  jamais  ce  quil  luy  avoit  fait,  que  souvent  il  prenoit 
un  couteau  pour  se  le  porter  dans  le  corps  que  souvent  luy  et  ses 
camarades  len  ont  empesch6  et  que  comme  ce  n'toit  pas  un  honmie 
sociable  et  quil  navoit  point  de  bonnes  raisons  luy  et  ses  cama- 
rades ne  le  frequentoient  point,  quils  ont  toujours  cm  quil  avoit 
quelque  chose  dans  I'sprit  qui  I'egarait,  qui  est  tout  ce  quil  a  dit 
scavoir  lecture  a  luy  faite  de  la  pr6sente  deposition  a  did  icelle 


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Servinien's  Case,  1752  311 

contenir  v6rit6  y  a  persists  et  a  d^clar6  ne  scavoir  6crire  ny  signer 
de  ce  enquis  suivant  lordonnance  et  n'a  requis  salaire. 

Raguet 
Henry  Greff 

Andre  Desjardins  soldat  de  la  Compagnie  de  Benoist  en  gar- 
rison en  cette  ville  ag6  de  quarante  cinq  ans  prof  essaht  la  religion 
Catholique,  apostolique  et  Romaine  lequal  apres  serment  par  luy 
preste  de  dire  v6rit6  a  declar6  netre  parent  alli6  ny  domestique  des 
parties  et  quil  a  6t6  assign^  a  ce  jour  pour  d^poser  v6rit6  a  La 
requete  de  M.  Le  Procureur  General  du  Roy  suivant  Texploit 
d'assignation  quil  nous  a  represents. 

Six^ — Depose  sur  les  faits  mentionnSs  en  la  plainte  de  M.  Le 
Procureur  General  du  Roy  suivant  I'exploit  d'assignation  quil  et 
dont  luy  avont  fait  lecture  que  le  nomme  Servinien  dit  La  Ro- 
chelle  soldat  de  leur  compagnie  et  de  leur  chambrSe  se  tiia  hier  au 
matin  sur  les  huit  a  neuf  heures  avec  son  fusil  en  se  cassant  la 
teste,  qu'une  heure  avant  cela  il  avait  voulu  se  tuer  avec  un  couteau 
et  le  jetta,  que  plusieurs  fois  il  avait  voulu  se  tuer  et  se  dfitruire 
a  coups  de  couteau,  qu'il  luy  a  apparu  a  luy  et  a  ses  camarades  que 
cet  homme  la  avoit  Tesprit  egarS,  que  meme  etant  a  la  cantine 
avec  ses  camarades  il  alloit  de  table  en  table  prendre  les  bouteilles 
et  buvant  comme  un  fou,  qu'il  se  mettoit  en  colere  en  jurant  qu'il 
se  detruiroit  luy  et  son  pere,  et  toute  so  mauvaise  conduitte  le 
faisoit  souvent  mettre  en  prison,  qu'il  Stoit  sy  peu  sociable  que  luy 
dSposant  ny  aucuns  camarades  ne  vouloient  point  faire  soci6t6 
ensemble  avec  luy,  qui  est  tout  ce  quil  a  dit  scavoir. 

Raguet  (paraphe) 

Sept^ — ^Lecture  a  luy  faite  de  la  pr6sente  deposition  a  dit 
icelle  contenir  verite  y  a  persists  et  d6clar6  ne  scavoir  ecrire  ny 
signer  de  ce  enquis  suivant  lordce. 

Raguet  (paraphe) 
Henry  Greff  (paraphe) 


No.  3. 

No.  1304.  Original  Text: 
Proces  Verbal  d'Enlevement  du  Cadavre  de  Servinien  dit 
La  Rochelle. 
19  Avril  1752. 

L'an  mil  (1)  sept  cent  cinquante  deux  le  dixneufieme  (1) 
avant  midy  pardevant  nous  Jean  Baptiste  Raguet,  Conr  du  Roy  au 


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312  The  Louisiana  Historical  Quarterly 

Conseil  Superieur  de  la  Louisianne  Commissaire  en  cette  partie 
est  comparu  M.  Le  Procureur  General  du  Roy  lequel  nous  a  dit 
quil  vient  daprendre  que  la  nuit  derniere  ont  avoit  enleve  le  corps 
du  nomme  Andr6  Servinien  dit  La  Rochelle  soldat  de  cette  gami- 
son  qui  etoit  depose  dans  une  cabanne  de  Lhopital  du  Roy  de  citte 
ville — et  contre  la  m6moire  duquel  il  poursuivoit  le  proces  criminel 
pour  le  faire  punir  comme  homicide  de  luy  meme  suivant  la 
rigueur  des  ordonnances  du  Roy — ^pourquoy  il  requiert  de  nous 
transporter  avec  luy  et  le  Gref f ier  aud  hopital  pour  nous  informer 
du  fait  et  en  dresser  proces  verbal  surquoy  et  a  Tinstant  nous 
etant  transport's  aud.  Hopital  ou  y  etant  nous  aurions  demand' 
au  nomm'  Baptiste  et  a  deux  Jeunes  Gens  aprentis  chrurgiens 
dun  nomme  chastang  et  lautre  dupon  de  nous  montrer  la  cabanne 
ou  etoit  d'pos'  le  cadavre  en  question  lesquels  nous  auroient  dit 
que  ce  cadavre  auroit  ete  enleve  sans  doute  la  nuit  derniere  puis- 
quil  etoit  hier  au  soir  dans  la  de  Cabanne  dans  une  caisse  ou  ils 
lavoient  soUe  depuis  deux  jours  (quils)  (1)  ne  scavent  ny  nont 
aucunne  connoissance  qui  a  pu  faire  cet  enlevement  puisqueux  ne 
couchent  point  a  (Lhopital)  (1)  ensuite  nous  (1)  nous  sommes 
transport's  a  la  cour  (1)  dudt  hopital  ou  est  construit  lade 
cabanne  et  apres  avoir  visif  partout  nous  ny  avons  trouve  aucune 
fracture  ny  rupture  ayant  pareillement  visit'  la  cloture  qui  en- 
toure  lade  cour  nous  ny  avons  rien  vu  de  d'rang',  et  dans  linstant 
sont  intervenues  deux  ReligJeuses  Ursulines  les  quelles  ont  soin 
dudt  hopital  et  des  malades  dont  lune  nomm'e  Magdelaine  et 
lautre  Saint  Xavier  qux  quelles  avons  demand'  sy  elles  avoint 
connoisance  de  Tenlevement  du  corps  en  question,  elles  nous  ont 
dit  nen  avoir  aucune  attendu  quelles  etoint  rentr'es  et  couch'es 
dans  leur  monastere,  que  seulement  ce  matin  sur  les  quatre  a  cinq 
heureson  leur  raporta  que  ce  corps  ny  etoit  plus  et  que  Ion  lavoit 
sans  doute  enlev'  la  nuit  pendant  le  mauvais  temps  quil  a  fait  par 
.  la  pluye  et  tonnerre  qui  est  tout  ce  que  nous  avons  pu  decouvrir 
au  sujet  du  dit  enlevement,  de  tout  quoy  avons  dress'  le  pr'sent 
process  verbal  pour  servic  et  valoir  ce  que  de  raison,  le  malades 
nous  ayant  meme  did  quils  navoient  rien  apercu,  fait  a  Lhopital 
le  susdt  jour  mois  et  an. 

Raguet  Fleuriau  Henry  Greff  (paraphe) 


(1)  missing  in  text  and  supplied:  neufi  (eme)  Lh(opital) 
(ensuite  nous)  (a  la  cour). 


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Servinien'8  Case,  1752  31^ 

No.  4.  Original  Text: 

No.  1305. 
Nomination  d'un  Curateur  d  la  Mimoire  du  Nomm4  Servinien 

dit  La  Rochelle. 
19Avrill752 

Vu  par  Nous  Conseiller  Commissaire  en  Cette  Partie  La 
Plainte  port6e  par  Mr  Le  Procureur  G6n6ral  du  Foy  Contre  le 
Nomm6  andr6  Servinien  dt  La  Rochelle  soldat  En  datte  du  dix 
huit  du  present,  Lordonnance  de  Monsieur  Michel  Conr  du  Roy 
en  ses  Conseils  Commissaire  General  de  la  Marine  Ordonnateur  a 
la  Louisianne  au  bas  de  la  ditte  Plainte,  dudt  Jour,  Les  Conclu- 
sions de  Mr  Le  Procureur  General  du  Roy  Nous  Commississaire 
susdt  attendu  que  ledt  Servinien  homicidie  Na  aucuns  parents  En 
Cette  Colonic,  avons  Nomm6  doff  ice  pour  Curateur  a  sa  m^moire 
Le  Momme  Pierre  Cecille  habitant  de  cette  Colonic  Lequel  sera 
assign^  Pardevant  Nous  pour  accpter  la  dte  Charge  et  prester  ser- 
ment  Donne  a  La  Nouvelle  Orleans  Le  dix  neuf  avril  mil  sept 
cent  Cinquante  deux  du  matin. 

"Raguet"  "Henry,  Greff"  (paraphe). 

Lan  Mil  Sept  Cent  Cinquante  deux  Le  dixneufieme  Jour 
d'avril  deux  heures  de  Revelev6e  Est  Comparu  Pardevant  Nous 
Commissaire  susdit  Et  so\issigne  Le  Nomm6  Pierre  Cecille 
habitant  Demeurant  En  cette  Ville  de  la  Nile  Orleans  Curateur 
par  Nous  Nomme  doff  ice  au  Cadavre  et  a  La  Memoire  du  nomme 
Andre  Servinien,  dit  La  Rochelle  soldat  En  garnison  En  Cette 
Ville  a  Effet  du  proces  Criminel  qui  sera  Extraordinairement  in- 
strut  par  Nous  a  la  Requete  de  Mr  Le  Procureur  General  du  Roy 
Lequel  Cecille  Cy  present  a  Volontairement  accepts  lade  Charge 
de  Curateur  Et  a  fait  ser  ment  De  Bien  Ed  fidellement  defendre 
La  memoir  dudt  Servinien  dont  acte  Et  a  signe  Les  susds  Jour, 
mois  Et  an  p.  cecile 

Raguet  Henry,  Greffier  (paraphe) 


No.  5.  No.  1306 

Original  Text: 
20  avril  1752 

Rdcolemont 

Recollement  de  temoins  entendu  Contre  Servinien 
Lan  Mil  Sept  Cent  Cinquante  deux  Le  Vingtieme  Jour  du 
mois  davril  de  Relevee  Pardevant  Nous  Jean  Baptiste  Ragviet 


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314  The  Louisiana  Historical  Quarterly 

Conr  au  Conel  Superieur  de  la  Louisianne  Est  Comparu  Mr  Le 
procureur  general  du  Roy  Lequel  Nous  a  dit  quen  Execution  de 
notre  ordonnance  dud  jour  au  niatin  II  a  fait  assigner  Le  Nomm6 
Joseph  Odoy,  Jean  Louis  Rabidou,  Pierre  filhev  et  Andre  Des- 
jardins  soldats  de  la  Compagnie  de  Benoist  troupes  'd6tachees  de 
la  marine  Entretenue  en  cette  Colonie,  et  Temoins  ouy  en  Linfor- 
mation  premiere  f  aitte  a  San  Requete  Le  dixhuit  du  present  mois 
Contre  Le  Nomme  Andre  Servinien  dt  La  Rochelle,  soldat  de 
lade  Compagne  accuse  de  Sestre  Casse  La  tete  avec  son  fusil  pour 
estre  Recolles  en  Leur  depositions  par  Exploit  de  Le  Norman  huis- 
sier  audiancierde  ce  jour  Lequel  II  nous  a  represents  et  requis 
quil  put  proceder  au  Recollement  des  Temoins, 

Surquoy  avons  donnee  acte  a  mond  Sr.  procr  General  du  Roy 
de  sa  Comparution  due  et  requisition  et  ordonne  quil  sera  par  nous 
pr6sentement  proced6  au  Recollement  des  T6moins  et  Sest  mond 
Sieur  procr  General  du  Roy  retire, 

Et  a  Linstant  Est  Comparu  Joseph  Odoy  soldat  de  la  Com- 
pagnie de  Benoist  premier  temoin  ouy  en  Linformation  par  nous 
faite  a  la  requetede  mondt  Sieur  Le  procr  General,  auquel  Odoy 
apres  serment  par  luy  fait  de  dire  v6rit6  avons  fait  f aire  Lecture 
de  la  deposition  par  luy  faite  en  la  dte  Information  et  apres  Lavoir 
ouy  a  dit  quelle  est  Veritable  my  veut  agumenter  ny  diminuer  et 
quel  y  persiste  Lecture  a  luy  faite  du  present  Recollement  y  a 
aussy  persists  et  declare  ne  Scavoir  Ecrire  ny  signer  dece  Enquis 
suivant  Lordce 

Raguet  Henry,  Greffier  (paraphe) 

Est  aussy  Comparu  Jean  Louis  Rabidou  Soldat  de  la  Com- 
pagnie de  Benoist  en  garnison  en  cette  Ville  deuxieme  temoin 
ouy  a  la  dte  Information  Auquel  apres  le  serment  par  luy  fait  de 
dire  vSrite  avons  fait  f aire  Lecture  de  la  deposition  par  luy  faite 
en  ladte  Information  et  apres  Lavoir  ouy  a  dit  quelle  est  veritable 
ny  veut  augmenter  ny  diminuer  et  quil  y  persists  Lecture  a  luy 
faite  du  present  Recollement  y  a  aussy  persiste  et  declare  ne  Sca- 
voir Ecrire  ny  signer  dece  Enquis  suivant  Lordonnance,  et  a  signe 
Ensuite  J.  L.  Rabigou 

Raguet  Henry  Greff .  (paraphe) . 

Est  aussy  Compary  Pierre  filhev  soldat  de  la  Compagnie  de 
Benoist  en  garnison  en  cette  Ville  troisieme  temoin  ouy  en  ladte 
Information  apres  serment  par  luy  fait  de  dire  V6rit6  avont  fait 


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Servinien's  Case,  1752  315 

fre  Lecture  de  la  deposition  par  luy  faite  en  ladte  Information  et 
apres  Lavoir  ouy  a  dit  quelle  est  veritable  dans  tout  son  contenu  et 
quil  na  rien  a  y  augmenter  ny  diminuer  et  quil  y  perist6  Lecture  a 
luy  faite  du  present  RecoUement  y  a  aussy  persiste  et  declare  ne 
scavoir  Ecrire  ny  signer  dece  Enquis  suivt  Lordce. 

Raguet  Henry  Greff.  (paraphe). 

Est  aussy  Comparu  Andre  Desjardins  soldat  de  la  Compagnie 
de  Benoist  en  garnison  en  cette  Ville  Quatrieme  temoin  ouy  en 
ladte  Information  auquel  apres  serment  par  luy  fait  d  dire  Verite 
avons  fait  fre  Lecture  de  la  deposition  par  luy  faite  en  ladte  In- 
formation et  apres  Lavoir  ouy  a  dit  quelle  est  veritable  dans  tout 
son  contenu  et  quil  na  rien  a  y  augmenter  ny  diminuer  et  il  y 
persiste  Lecture  a  luy  faite  du  present  RecoUement  y  a  aussy  per- 
siste et  declare  ne  scavoir  Ecrir  ny  signer  dece  Enquis  suivt  Lor- 
donnance. 

Raguet  Henry  Greff .  (paraphe). 


No.  6. 

20  avril  1752 

No.  1307. 

Origintal  Text: 

Interrogatoire  du  Curateur  de  Servinien. 
6«  pag 

Lan  Mil  Sept  Cent  Cinquante  deux  Le  Vingtieme  Jour  du 
mois  dAvril — Pardevant  Nous  Jean  Baptiste  Raguet  Conr  du 
Roy  en  son  Conseil  Superieur  de  la  Province  de  la  Louisianne  Com- 
missaire  Noitime  en  cette  partie  Etant  au  Greffe  du  Conseil 
Superieur  de  la  dte  province  Est  Comparu  le  Nomme  Pierre 
Cecille  habitant  en  cette  ville  Curateur  par  nous  Nomme  doff  ice  a 
la  Memoire  du  Nomm6  Andre  Servinien  dt  La  Rochelle  soldat  dune 
des  Compagnies  de  troupes  detachees  de  la  Marine  Entretenue  en 
cette  Colonie  Lequel  Sest  homicide  et  le  dt  Curateur  nous  adit 
quil  est  pret  et  offre  de  subir  LInterrogatoire  sur  les  faits  resul- 
tant des  Informations  par  nous  faite  a  la  requete  du  procr  general 
du  Roy  contre  la  memoire  dud  Andre  Servinien  Requerant  quil 
nous  plaise  luy  donner  acte  de  sa  Comparution  et  proc^der  a  son 
Interrogation  et  a  signe  avant  midy 

Cecile 


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316  The  Louisiana  Historical  Qtuirterly 

Surquoy  nous  avons  donn6  acte  aud  Pierre  Cecille  aud  Noms 
de  sa  Comparution  et  Requisition  cydessus  et  ordonne  ql  sera  par 
nous  proc6d6  tout  presentement  a  LInterrogatoire  dud  Curateur, 

Et  a  rinstant  les  Pierre  Cecille  a  prete  serment  de  repondre 
v6rite  sur  les  f aits  sur  lesquels  II  nous  plaira  LInterroger 

Ce  fait  Lavons  interroge  de  son  age  quality  et  demeure  A  dit 
que  son  nom  est  Pierre  Cecille  habitant  en  cette  Ville  y  demeurant 
ordinairement  ag6  de  quarante  cinq  ans  Environ  professant  la 
Religion  Catholique  apostolique  et  Romaine 

Interroge  si  Scait par  lequel  il  a  ete  Nomme  Curateur 

en  cette  occasion ; 

a  Repondu  que  comme  le  Nomm6  Andre  Servinien  soldat  dune 
Compagnie  de  troupes  d6tach6es  de  la  marine  a  ete  trouv6  dans 
Lendroit  ou  il  y  avoit  autrefois  des  Latrines  et  dans  Lun  des  corps 
de  la  caserne  Lequel  on  Croit  quil  sest  tue  Luy  mesme  avec  son 
fusil,  Na  aucun  parent  Iln  cette  colonie  II  a  6t6  nonim6  par  sen- 
tence du  jour  dhier  Curateur  doffice  a  la  m6moire  du  d  Andre 
Servinien  Lequel  Nest  plus  Estant  son  cadavre  ayant  6t6  Enlev6 
le  nuit  du  dixhuit  au  dix  Neuf  suivant  quil  a  apris  par  le  bruit 
public 

Interrog^  sil  scait  Le  sujet  pour  lequel  ledt  soldat  se  d6druit, 

a  Repondu  will  nen  scait  rien  mais  que  Comme  led  soldat 
Etoit  frap6  dSsprit  et  ayant  souvent  des  Vertiges  de  Colere  de 
f urie  Et  transport  II  nest  point  Etonnant  quil  se  soit  servy  de  ce 
moment  pour  se  d6truire 

Ragt 

Interroge  sil  la  vu  quelquefois  dans  ses  vertiges  a  R6pondu 
que  non  mais  quil  a  ouy  dire  a  ses  Camarades  de  Chambree  quil  y 
6toit  fou  sujet  et  mesme  souvent  ils  lont  reprim6  a  cet  effet  mais 
quil  n^toit  pas  capable  dentendre  raison  quand  ses  fureurs  le 
prenoit,  Interroge  sil  na  point  ouy  dire  quil  eut  quelques  mesin- 
telligences  (2)  avec  quelqun  de  ses  Camarades  qui  auroit  pu  se 
servir  de  ce  moment  pour  Lavoir  tue  a  Repondu  que  non  et  quil  ne 
Croit  pas  quaucun  de  ses  Camarades  Lay  fait  parcequils  Le 
fuyoient  a  Cause  de  ses  fr6n6zies  qui  luy  prenoient  souvent  et 
flurtout  quand  il  avoid  bu  et  mesme  apres  avoir  Cuv6  son  vin  ou 
son  Esprit  etoit  plus  alen^  quauparavant 

Interroge  sil  na  rien  a  dire  de  luymesme  tant  a  la  Charge 
que  ala  d^charge  de  la  Memoire  dud  Andre  Servinien,  a  Repondu 
navoir  rien  autre  Chose  a  dire  sinon  qu'il  avoit  LEsprit  dun  ali6n6 


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Servinien*8  Case,  1752  817 

et  que  de  desespoir,  que  depuis  quil  a  vu  par  la  deposition  de  Te- 
moins  quil  ne  parloit  que  de  tuer  son  pere  et  de  se  tuer  nsuite  que 
mesme  il  avoit  esgaye  de  se  donner  Luy  mesme  des  Coups  de  Cou- 
teau  dans  LEstomac  Ce  que  ses  Camaradesont  souvent  Empeschg. 
Lecture  a  luy  faite  du  present  Interrogatoire  dit  que  ses  R^ponses 
Contiennent  v6rit6  et  quil  y  persiste  et  a  sign6  cecile 
Raguet 
Soit  Communique  a  Mr  Le  procureur  gfial  du  Roy  a  la  Nou- 
velle  Orleans  4  de  May  1752 

Raguet 


21«  avril  1752  No.  1808 

No.  7. 

Pre  pag  Original  Text: 

Confrontation  de«  T^moint  ouit  Contro  Servinien. 

Confrontation  faite  par  Nous  Jean  Baptiste  Raguet  Conr 
du  Roy  en  son  Conel  Sup^rieur  de  la  province  de  la  Louisianne 
Commissaire  Nomm6  en  cette  partie  a  la  Requete  du  procureur 
g6n6ral  du  Roy  demandeur  et  accusateur  Contre  du  Nomm6  Andre 
Servinien  dt  La  Rochelle  soldat  dune  Compagnie  de  troupe  d6tach6 
de  La  Marine  Entretenue  en  cette  Colonie  accus6  de  sestre  d6truit 
des  t6moins  ouys  en  Linformation  par  nous  faite  le  dixhuit  du 
present  mois  et  en  Execution  de  notre  sentence  du  dixneuf  de  ce 
present  mois  alaquelle  confrontation  nous  avons  pro6d6  ainsy  quil 
Ensuit 

du  Vingtun  Avril  Mil  Sept  Cent  Cinquinte  deux 

trois  heures  de  Relev6e 

Ceprouv4  un  mot  Interlign&  (paraph  de  Raguet).  . 

Est  Comparu  pardevant  ous  Pierre  Cecille  Curateur  omm6 
a  la  m6moire  de  Andre  Servinien  dt  L  Rochelle  Soldat  de  la  Com- 
pagnie de  Benoist  troupe  d^tache  de  la  Marine  Entretenue  en 
cette  Colonie  de  present  en  garnison  en  cette  ville  accus6  de 
sestre  homicide  Auquel  avons  Confronts  Joseph  Odoy  soldat  de 
lad  Compagnie  premier  t^moin  de  Linformation  et  apres  serment 
fait  Tant  par  led  Curateur  que  par  les  T6moins  de  dire  V6rit6  et 
Interpell6  de  dire  sils  se  Connoissoient,  Ont  dit  Scavoir  led  Cura- 
teur quil  ne  Connoit  pas  led  Temoin  et  led  Temoin  quil  Connoit 
de  vue  Pierre  Cecille  pour  habitant  en  cette  Ville 


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818  The  Louisiana  Historical  Quarterly 

Apres  quoy  avons  fait  faire  Lecture  par  le  Greffier  dudt 
Conel  des  premiers  articles  de  la  deposition  du  T6moin  contenant 
son  age  qualite  et  demeure  et  sa  declaration  Comme  il  nest  point 
parent  dud  accuse  non  plus  que  dud  Curateur,  et  Interpelle  led 
Curateur  en  saqualite  de  fournir  Tout  presentement  reproche 
contre  led  Temoin  sinon  et  a  faute  de  le  faire  quil  ny  sera  plus 
recu  apres  que  Lecture  luy  aura  ete  faite  de  sa  deposition  et 
recollement  suivant  Lordonnance  que  Luy  avons  donne  a  entendre, 
A  quoy  led  Curateur  a  Repondu  navoir  aucun  reproche  a  fournir 
Contre  led  Temoin  non  plus  que  led  T6moin  aud  Curateur. 

Ce  fait  Nous  avons  fait  fre  Lecture  de  la  deposition  et  Re- 
collement desd  T6moins  en  presence  dud  Curateur  accuse  Lequel 
T6moin  a  dit  que  la  deposition  est  veritable  et  La  ainisq  Soutenu 
aud  Curateur  et  que  cest  bien  Laccus^  quil  a  Entendu  parler  par 
sa  deposition  et  Recollement  et  y  a  persists  ci  par  led  Curateur  a 
6t6  dit  quil  narien  a  disputer  aud  T6moin  et  quil  Croit  sa  deposi- 
tion veritable, 

Lecture  faite  aud  Cecille  Curateur  et  aud  Temoin  de  la 
presente  Confrontation  Lesquels  y  ont  persists  chacun  a  leur 
Egard  et  a  led  Curateur  signe  non  led  T6moin  Lequel  a  declare 
ne  Scavoir  Ecrire  ny  signer  dece  Enquis  suivant  Lordce.       Cecile 

Raguet 

Est  Ensuite  Comparu  en  notre  presence  Le  Curateur  present 
Jean  Louis  Rabideau  soldat  de  la  Compagnie  de  Benoist  deuxieme 
temoin  ouy  en  la  dte  Information  et  apres  serment  fait  tant  par 
led  Curateur  que  par  led  temoin  de  dire  verite  Interpelle  de  nous 
dire  sils  se  Connoissoient  ont  dit  ne  se  point  Connoitre  mais  quils 
Connoissoient  bien  tous  deux  led  accuse  dhomicide  apres  quoy 
avons  fait  faire  Lecture  par  notre  Greffier  du  Conel  des  premiers 
articles  de  la  deposition  dudt  Temoin  Conteneant  son  Nom  age 
quality  et  demeure  et  sa  declaration  commil.  nest  point  parent 
allie  serviteur  ny  domestique  dud  accuse  Et  Interpell6  Led  Cura- 
teur de  fournir  tout  presentement  reproche  Contre  led  Temoin 
sinon  et  a  faute  de  la  fairie  il  ny  sera  plus  recu  apres  que  Lecture 
luy  aura  ete  faite  de  sa  deposition  et  Recollement  suivant  Lordon- 
nance que  nous  luy  avons  donne  a  entendre, 

A  tout  quoy  led  Curateur  non  plus  que  led  Temoin  ont  dit 
Navoir  aucun  Reproche  a  ses  faire  Lun  et  Lautre  en  aucune 
facon 


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Servinien's  Case,  1752  319 

Ce  fait  avons  fait  f aire  Lecture  de  la  deposition  et  RecoUe- 
ment  Temoin  en  presence  dud  Curateur  Lequel  Temoin  a  dit  que 
sa  deposition  est  veritable  La  ainsy  soutenue  aud  Curateur  et  que 
Cest  delacuse  quil  a  Entendu  parler  par  sa  deposition  ainsy  que 
par  so  Recollement  et  y  a  persiste, 

Aquoy  led  Curateur  a  repondu  quil  pense  que  tout  Ce  que 
led  Temoin  a  dit  est  veritable  ainsy  que  Luy  par  son  Interrogation 
quand  II  a  Connu  Led  accuse  pour  homme  qui  sortoit  souvent  de 
son  bonsens  Lequel  avoit  Lesprit  tres  aliene  et  par  led  Temoin  a 
ete  dit  quil  le  pense  aussy  de  mesme 

Lecture  faite  aud  Curateur  et  aud  Temoin  de  la  presente 
Confrontation  et  y  ont  persiste  chacun  En  Ce  qui  les  Concerne  et 
a  led  Curateur  signe  non  led  Temoin  Lequel  a  declare  Ny  Scavoir 
Ecrire  ny  signer  de  ce  Enquis  suivant  Lordce.  Cecile 

et  a  signe  J  L  Rabigou 

Raguet 

Est  Ensuite  Comparu  en  presence  du  Curateur  et  Pardevant 
Nous  Andre  Desjardins  soldat  de  la  Compagnie  de  Benoist  troi- 
sieme  Temoin  ouy  en  Ladte  Information  et  apres  serment  fait 
Tant  par  led  Curateur  que  par  led  Temoin  de  dire  Verit6  Inter- 
pelle  de  nous  dire  sils  se  Connoissoient  ont  dit  se  Connoitre  tres 
bien  Scavoir  led  Curateur  Connoitre  led  Desjardins  pour  estre 
soldat  de  ladte  Compe  de  Benoist  et  led  soldat  connoitre  led  Cecile 
Curateur  Nomme  pour  estre  habitant  en  cette  Ville  et  quils  ont 
tous  deux  Connu  Led  Andre  Servinien  dt  La  Rochelle  accuse  de 
sestre  detruit  pour  estre  soldat  de  lad  Compagnie  de  Benoist, 
apres  quoy  avons  fait  faire  Lecture  par  le  greffier  du  conseil  3es 
premiers  articles  de  la  deposition  du  Temoin  Contenant  Son 
nomage  et  qualite  et  demeure  et  sa  declaration  Commil  nest  parent 
allie  ny  serviteur  dud  accuse,  et  avons  Interpelle  led  Curateur  de 
fournir  Tout  presentement  reproche  Contre  Led  Temoin  sinon  et 
a  f aute  de  ce  faire  quil  ny  sera  plus  recu  des  que  Lecture  luy  aura 
ete  faite  de  sa  deposition  et  Recollement  Suivant  Lordonnance 
que  nous  Luy  avons  donne  a  Entendre, 

A  quoy  Led  Curateur  et  led  Temoin  ont  dit  navoir  aucun 
repoche  a  se  faire  Lun  a  Tautre 

Ce  fait  avons  fait  faire  Lecture  de  la  deposition  et  Recolle- 
ment dud  Temoin  en  presence  dud  Curateur  Lequel  Temoin  a  dit 
que  Sa  deposition  et  Recollement  sont  veritables  et  La  ainsy 


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820  The  Louisiana  Historical  Quarterly 

soutenu  aud  Curateur  et  que  Cest  bien  de  laccus^  quil  a  entendu 
parler  par  Sa  deposition  et  RecoUement  et  y  a  persists 

A  quoy  led  Curateur  a  Repondu  navoir  rien  ay  R6pondre  et 
quil  pensse  que  Lad  deposition  dud  T^moin  Juste,  Lecture  faite 
aud  Curateur  et  aud  Temoin  de  la  pr6sente  Confrontation  y  ont 
persists  chacun  en  Ce  qui  Le  Concerne  et  a  led  Curateur  sign6  Non 
led  Desjardins  T6moin  Lequel  a  declare  Ne  Scavoir  Ecrire  ny 
signer  dece  Enquis  suivt  Lordce,  cecile 

Raguet 

Est  ensuite  Comparu  Pardevant  Nous  Conunissaire  susd  en 
presence  dud  Cecille  Curateur  Le  Nomm6  Pierre  fuhev  troisieme 
T6moin  ouy  en  ladte  Information  et  apres  serment  fait  par  led 
Curateur  et  T6moin  de  dire  verity,  Interpell6  de  nous  dire  sils  se 
Connoissent  ont  dit  se  tres  bien  Connoitre  Comme  aussy  quils  ont 
Connu  led  Andre  Servinien  d  La  Rochelle  pour  estre  soldat  de  la 
Compagnie  de  Benoist; 

Apres  quoy  avons  fait  f aire  Lecture  par  le  Greff ier  du  Con- 
seil  des  premiers  articles  de  la  deposition  dud  TSmoins  Contenant 
son  nom  age  quality  et  demeure  et  sa  declaration  Commil  nest 
parent  alli^  ny  domestique  dud  accus6  non  plus  que  dud  Curateur 
Avons  Interpelle  led  Curateur  de  fournir  Tout  presentement 
Reproche  silen  a  f  aire  en  sa  qualite  sinon  et  a  f aute  de  ce  f aire  quil 
ny  Sera  plus  lorsque  Lecture  luy  aura  ete  faite  de  sa  deposition  et 
RecoUement  suivant  Lordonnance  que  nous  Luy  avons  donn6  a 
entendre, 

A  quoy  led  Curateur  et  Temoin  ont  dit  de  navoir  aucuns 
Re^roches  a  se  f  aire  en  aucune  f  aeon, 

Ce  fait  avons  fait  faire  Lecture  de  la  deposition  et  RecoUe- 
ment dud  Temoir  En  presence  dud  Curateur  Lequel  Temoin  a 
dit  que  Sa  deposition  et  RecoUement  Sont  Veritables  et  La  ainsy 
Soutenu  aud  Curateur  et  que  cest  bien  de  laccuse  quil  a  entendu 
parler  par  sa  deposition  et  et  RecoUement  et  y  a  persiste, 

Et  a  ete  Repondu  par  led  Curateur  quil  Croit  Veritable  Tout 
Ce  qua  did  led  Temoin  dans  sa  deposition  et  RecoUement. 

Lecture  faite  aud  Curateur  et  aud  Temoin  de  la  presente 
Confrontation  y  ont  persiste  chacun  en  ce  qui  Le  Concerne  et  a 
led  Curateur  signe  mais  non  led  Temoin  Lequel  a  declare  Ne 
Scavoir  Ecrire  ny  signer,  dece  Enquis  Suivant  Lordce.     cecile 

Raguet 


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Servinien'8  Case,  1752  821 

No.  8.  Original  Text:* 

Opinion  of  the  Attorney  General. 

Le  Procureur  General  du  Roy  demandr  Et  accuaateur 

Centre 
La  Memoire  du  Nomme  Andre  Servinien  accuse  de  sestre 
homicide  dun  Coup  de  fusiU 
Vu  par  Nous  Commissaire  En  cette  partye  touttes  les  peces  du 
proces  En  question  par  Nous  Instruit  le  tout  Examine 

Mon  avis  Est  sauf  celuy  de  Messieurs,  que  la  mSmoire  dud 
Servinien,  dit  La  Rochelle  soldat  de  cette  garnison  Soit  d6charg6 
de  Laccusation  attendu  quil  paroit  par  la  deposition  des  t^moins 
Entendus  En  cette  affaire  que  laccuse  Etoit  Souvent  En  d6mence 
d'Esprit;  Se  mettant  dans  des  furies  Extraordinaires  jusqu'a 
Vouloir  Se  tuer  Et  meme  menacant  de  tuer  son  pere ;  et  que  lors 
qu'il  Sest  donn6  Un  Coup  de  fusil  toute  la  matin6e  du  meme  jour,  11 
avoit  donne  des  marques  de  sa  f  urie  et  de  ses  f  olies. 
A  la  Nouvelle  Orleans  ce  cinqe  may  1752. 

Raguet. 
Sur  le  reverse : 
"A  Monsieur 

"Monsieur  Raguet  Conseiller 
Juge  de  Police 

a  la  Nile  Orleans" 


No.  9. 

Paraph^ 

MICHEL  1311 

6  Mai  1752 

Original  Text: 

Interrogatoirre  du   Curateur  ala   Memoire  du   nomme  Servinien   dit 

La   Rochelle. 

Audce  Criminelle  6  Mai  1752 

Ou  6toient  assemble  Messieurs  de  Vaudreuil  Gouverneur  Mi- 
chel Commissaire  General  de  la  marine  Ordonnateur  et  premier 
Juge  Dauberville  Commissre  de  la  marine  Sieur  et  Conr  demem- 
brede  Major  de  la  Nile  Orleans  Raguet  Conr  Le  Breton  delalande 
Kxnion  et  lafreniere  Cons  assesseurs 

A  la  Requete  du  proc  general  du  Roy  Contre  la  memoire 
d* Andre  Servinien  dt  La  Rochelle  soldat  de  la  Compagnie  de 


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322  The  Louisiana  Historical  Qvurterly 

Benoist  accuse  de  sestre  homicidoe,  en  Encore  Pierre  Cecille  Cura- 
teur  Nomme  a  la  memoire  dudt  accuse 

Vu  la  procedure  Criminelle  Extraordinairement  Intents 
Contre  led  Servignien, 

Le  Conseil  a  ordonne  que  ledt  Pierre  Cecille  Curateur  seroit 
mande  pour  estre  Interroge  Ce  fait  luy  avon  apres  le  serment  par 
luy  prete  de  dire  verity 

Interroge  de  son  age  et  qualite  et  demeure, 

A  dit  se  nommer  pierre  Cecile  habitant  en  cette  ville  age  de 
quarante  Cing  annees  professant  La  Religion  Catholique  aposto- 
lique  et  Romaine  et  quil  a  este  Nomme  Curateur  a  la  memoire  d 
Andre  Servinien 

MICHEL 

MICHEL — Interroge  sil  se  quelque  chose  de  plus  que  son  In- 
terrogatoire 

A  dit  navoir  rien  de  plus  a  dire  qu^  ce  quil  a  deja  Repondu 

Interroge  sil  est  vray  quil  ait  dit  quil  avoit  Envie  de  tuer 
son  pere 

A  repondu  que  ouy,  quil  luy  a  bien  ouy  dire  dans  Ces  folies 
que  sil  retournait  en  france  quil  tueroit  son  pere  et  quil  avoit 
mesme  voulu  se  tuer  plusieurs  fois 

Lecture  a  luy  f  aite  de  presente  Interrogation  a  dit  quelle  Con- 
tient  verite  y  a  persste  et  signe  cecile 

Vaudreuil  MICHEL 

D'auberville 
delalande  Raguet 

huchet  de  Kernion  Le  Bretton 


No.  10. 

Paraphe  No.  1312. 

Jugement  d'absolution  de  fa  memoire  de  Servinien  dit  La  Rochelle. 

MICHEL  Audience  Criminelle  du  6  May  1752 

6  mai  1752 

Ou  Etoient  Messieurs  de  Vaudreuil  Gouverneur  Michel  Com- 
mssaire  General  de  la  Marine  Ordonnateur  et  pr  Juge  Dauberville 
Comre  de  la  marine  second  coner,  de  Membrede  maor  de  la  Nile 
Orleans,  Raguet  Coner,  Le  Breton,  delalande  Kernion  et  Lafre- 
niere  Conss  assessors. 


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Servinien's  Case,  1752  323 

A  la  requete  du  procr  geneeral  du  Roy  demandeur  et  accusa- 
teur  Centre 

Le  Nomme  Andre  Servinien  dt  Rochelle,  soldat  de  la  Com- 
pagnie  de  Benoist  troupes  detach^es  de  la  Marine  Entretenue  en 
cette  Colone  deff unt  et  accus6  de  sestre  homicide  Sestant  casse  la 
tete  avec  son  fusil 

Et  Pierre  Cecille  habitant  Nomm6  Curateur  a  la  memoire 
dud  accuse : 

Vu  le  proces  verbal  de  la  descente  sur  les  lieux  ou  il  sestre  tu6 
pour  le  procureur  general  du  Roy  accompagn6  du  Gref  f  ier  en  date 
du  dixsept  avril  dernier 

La  Requete  presentee  par  mon  dit  Sr  Procureur  general  du 
Roy  et  lordonnance  au  bas  portant  permission  de  poursuivre  crimi- 
nellement  Lassassinat  ou  homicide  pardevant  Mr  Raguet  Conr 
Nominaton  dun  Curateur  au  Cadavre  et  Information  Recollement 
Interrogatoire  et  Confrontation  Le  tout  en  date  du  dixhuit  dud 
mois 

linformation  dud  our  de  quatre  temoins  ouy 

La  Nomination  de  Pierre  Cecille  habitant  Curateur  au  Ca- 
davre en  datte  du  dixneuf  dudt  mois  prestation  de  serment  aud 
Curateur  de  ce  jour, 

Linterrogatoire  de  Pierre  cecille  Curateur  en  datte  du  Ving- 
tieme  dud  mois, 

Le  Recollement  des  Temoins  dud  jour 

Confrontation  des  d  Temoins  ouy  En  lad  Information  aud 
Pierre  Cecille  Curateur  du  Vingtieme  dud  mois,  Le  proces  verbal 
dEnlevement  dud  Cadavre  du  dixneuf  dud  mois 

Les  Conclusions  du  procr  general  du  Roy  de  ce  jour 

Le  tout  Vu  et  Considere  Le  Conseil  a  Rendu  La  preuve  Resul- 
tante  de  LInformaton  que  led  Andre  Servinien  dt  La  Rochelle 
soldat  de  la  Compagnie  de  Benoist  netoit  pas  dans  son  bon  sens 
ayant  Lesprit  ali^ne  et  attaque  de  furie,  a  d6charge  sa  Memoire 
de  Laccusation  en  question 

Donne  en  la  Chambre  du  Consel  Le  sixieme  May  mil  sept  cent 
cinquante  deux 
Vaudreuil  MICHEL 

Dauberville 
delalande  huchet  de  Kernion 

Raguet  Le  Bretton 


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RECORDS  OF  THE  SUPERIOR  COUNCIL  OF  LOUISIANA 

No,  XI  (Continued  from  April  Number) 


Petition  For  Extension  of  Time.  Dec.  10,  1728,  Antoine  Bon- 
vilain  by  no  means  evades  his  debt  to  Mr,  Kolly;  only 
he  is  himself  hampered  on  every  side  by  outstanding 
accounts,  and  he  begs  a  respite  of  six  weeks.  No  note 
by  Court. 

Petition  of  Recovery.  Dec.  11,  1728.  Pierre  Dreux  claims  131 
francs  for  beer  that  he  furnished  to  the  late  Mr.  De- 
cour.  Original  account  is  given  as  200  francs,  on 
which  81  francs  were  paid.  If  so,  net  account  should 
be  119  francs? 

Notice  served  to  Mr.  Rossard,  attorney. 

Duplicated. 

Petition  Over  a  Misappropriated  House.  Dec.  11,  1728.  Pierre 
Dreux  smothers  himself  through  a  featherbed  of 
wordy  effort,  in  order  to  bring  action  against  Mr.  Ros- 
sard, attorney  of  vacant  estates,  on  account  of  a  cer- 
tain house  accredited  to  Clairf ontaine  (deceased) ,  but 
really  belonging  to  petitioner's  former  partner  Co- 
hendo,  who  returned  to  France  leaving  Clairfontaine 
in  virtual  possession,  but  subject  to  some  provisos 
which  the  latter  failed  to  fulfil.  Let  the  house  be  ad- 
judged as  Cohendo's  property. 
Notice  served  to  Mr.  Rossard. 

Decisions  in  Sundry  Suits.  Dec.  11,  1728. 

1.  Mondreloy  vs.  De  Manad6  and  wife.    Seizure  val- 
id,  and  claim  to  be  discharged. 

2.  Pieron,  alias  Vendome,  vs.  Baldic.    Claim  allowed. 

3.  Daniel' Kolly  vs.  Pontvillain  (Teutonism  for  Bon- 
villain).    Claim  allowed. 

4.  Aville  vs.  Jean  Cariton.    Jean  in  default,  judg- 
ment for  A. 

1728-1737 — Account  of  Labbe,  farmer  with  the  Company  of  the 
Indies  for  negroes  and  advances  of  money  amounting 


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Records  of  the  Superior  Council  of  Louisiana  825 

to  $7,520,  verified  by  vouchers;  calculations  made  in 
New  Orleans,  Nov.  19,  1737. 

Petition  of  Recovery.  Dec.  14,  1728.  Arnaud  Bonnaud  moves 
for  the  citation  of  Mr.  Kolli,  to  pay  the  sum  of  1800 
francs,  due  on  his  note  of  Nov.  15,  1727.  Action  al- 
lowed. 

Petition  to  Recover  Damages.    Dec.  14,  1728.    Charles  de  Mo- 
rand  claims  what  damages  the  Court  will  allow,  from 
Coupard,  carpenter  for  breach  of  contract,  in  the  mat- 
ter of  finishing  a  certain  house  by  the  time  agreed. 
Notice  served  to  Coupard. 

Petition  of  Recovery.  Dec.  18,  1728.  Jacques  Ozanne  (signed: 
J.  Ozanne)  cooper  of  the  Company,  lent  8  Spanish  dol- 
lars and  143  francs  to  the  late  Morel  de  Clairfontaine^ 
as  shown  by  notes  adduced.  The  deceased  left  word 
in  pressence  of  Mr.  Tesson,  that  these  debts  were  to 
be  paid  with  a  coat  which  is  now  in  the  hands  of  Lang- 
lois,  tailor.  Let  the  coat  be  delivered  to  J.  0. 
No  note  by  Court. 

Petition  in  Remonstrance.  Dec.  18,  1728.  George  Tesson  shows 
that  he  lent  the  late  Mr.  Morel  de  Clairfontaine  600 
francs  to  build  a  house  on  lot  No.  54;  property  duly 
mortgaged  to  G.  T.  but  now  claimed  by  Mr.  Rossard, 
attorney  for  vacant  estates.  G.  T.  claims  a  further 
sum  of  207  francs  from  Clairfontaine  estate,  on 
ground  herein  adduced.  Let  Mr.  R.  be  nonsuited,  and 
let  G.  T.  have  preferred  credit. 

Petition  of  Recovery.  January  4,  1729.      Sansfagon    claims    a 
flour  account  of  271  francs  from  Durivage,  and  a  fur- 
ther item  of  55  francs  due  on  a  transferred  note. 
Action  allowed,  and  word  left  with  Madame  D. 

Petition  in  Remonstrance.  January  7,  1729.  Ren6  Boyer  waa 
partner  with  the  late  Mr.  Clairfontaine  in  a  tract  of 
12  acres  (frontage)  on  the  Mississippi.  Mr.  Rossard 
now  seeks  to  appropriate  two  slaves  therefrom  to  va- 
cant estate.  This  would  ruin  R.  B.,  and  prevent  him 
from  settling  his  debts  to  the  Company.    Let  R.  B.. 


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826  The  Louisiana  Historical  Qicarterly 

be  secured  in  possession  of  land  and  the  two  slaves. 
Action  allowed. 

Decisions  in  Sundry  Suits,  January  8,  1729. 

1.  D'Auseville  vs.  Joffre.     Arbitration    report    con- 

firmed and  its  terms  to  be    carried    out.     Other- 
wise, the  case  is  further  pending. 
Costs  reserved. 

2.  Meynard  vs.  Rossard.     Goods  to  be  sold  in  satis- 
faction of  claim. 

Costs  divided. 

3.  Prevost  vs.  Rossard.     Dismissed  until  adjustment 
of  deceased  LaSalle's  accounts. 

4.  Sansfagon  vs.  Durivage. 

Deferred. 

(Unsigned)  Extract  From  Report  on  Morillet  Estate  in  Account 
with  Mr.  and  Madame  Dreux.  January  8,  1729.  The 
"report"  was  charged  by  Mr.  de  Rochemore  to  make  an 
amicable  division  of  said  estate's  property.  Failing  to 
satisfy  the  contesting  parties  (Mr.  and  Madame  Dreux 
in  particular),  he  submits  the  points  at  issue  to  the 
Superior  Council  for  adjudication.  He  also  notes  his 
own  opinion  for  the  said  issues. 

Composition  of  Creditors.  Jaituary  9,  1729.  Arrangements  be- 
tween Nicolas  Bion ;  former  employe  of  the  Company, 
and  his  creditors.  List  of  credits  followed  by  remarks 
on  the  situation.  Mr.  Bion  cannot  meet  his  obligations 
in  this  country,  where  he  is  actually  dependent  on  char- 
ity ;  but  he  is  authorized  to  return  to  France  where  he 
hopes  to  recuperate.  Further  list,  showing  whom  he 
promises  to  pay,  and  how  much. 
Array  of  signatures  and  marks. 

Receipt.  January  10,  1729.  Lagarde  has  received  of  Port  Cap- 
tain Genet  the  sum  of  1500  francs  on  account  of  the 
hire  of  negroes  of  DeChaumont  grant.  Reference  to 
an  agreement  "between  us  and  Monsieur  de  Cha- 
Vanne." 


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Records  of  the  Superior  Council  of  Louisiana  327 

Petition  of  Recovery.  January  12,   1729.    Pierre  Francois  De- 
joux,  surgeon  claims  165  francs  from  Bourbeau. 
Action  allowed. 

Memorandum  of  Supplies.  Jan.  12,  1729.  "Statement  of  the 
goods  embarked,  and  omitted  in  my  account,  but  en- 
tered on  the  books  of  the  grant,  in  Paris,  item  for  item, 
Mr.  Kolly  has  refused  to  accredit  me  for  the  same  un- 
til Mr.  Dumanoir  has  rendered  his  accounts ;  although 
certain  that  I  had  furnished  the  goods."  Total  bill, 
3890  francs,  13  sous.  There  follows  a  petition  for  the 
citation  of  Messrs.  Drouet,  attorney,  and  Kolly,  part- 
ner in  the  grant,  to  pay  the  sum  of  6000  francs  to  the 
writer,  Faucon  Dumanoir,  both  for  capital  and  for  his 
living  expenses. 
Action  allowed. 

Petition  to  Recover  Sale  Proceeds.    Jan.  13,  1729.     Mr.  Rossard 
moves  for  the  citation  of  Sieur  Roger,  employ^,  to  pay 
93  francs  due  on  sale  of  some  goods. 
Action  allowed. 

Decisions  in  Two  Suits  Jan.  15, 1729. 

1.  Dumainoir  vs.  Kolly. 

Deferred. 
Costs  reserved. 

2.  Rene  Boyer  vs.  Rossard.  R.  B.  to  retain  the  ne- 
groes.    Costs  divided. 

Petition  of  Recovery.  Jan.  18,  1729.  Mr.  Kolly  seeks  to  collect 
an  aggregate  amount  of  1460  francs  and  13  sous  from 
Sieur  Massy,  based  on  claims  duly  described.  Action 
allowed. 

Summons  to  Attend  Hearing.  Jan.  19,  1729.  Sheriff  Dargaray 
notifies  Mr.  Droy  (Drouet)  to  appear  on  Saturday 
next  in  the  suit  between  Mr.  Dumanoir  and  Mr.  Droy. 

Petition  of  Recovery.  Jan.  21,  1729.  Jacques  Esnoul  De  Livau- 
dais  moves  to  collect  1500  francs,  or  net  avails  thereof, 
due  by  Mr.  Kolly  for  salary  arrears  of  the  late  Mr. 
Ceard;  five  years,  1720  (May  12)  to  1725  (June),  at 


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828  The  Louisiana  Historical  Quarterly 

8000  francs  a  year,    Mr.  De  Livaudais  acts  as  attor- 
ney for  Demoiselles  de  La  Lande,  nieces  of  Mr.  C. 
Action  allowed. 

Decisions  Between  Dumanoir  and  KoUy.    Jan.  22,  1729,    Defen- 
dant to  pay  provisional  amount  of  4000  francs. 
Costs  reserved. 

Petition  For  Passage  to  France.  Jan.  25, 1729.  Bion  shows  that 
all  his  creditors  are  willing  to  see  him  return  to  France 
except  Mr.  Duval  and  Mr.  Herpin,  on  behalf  of  Mr.  Pe- 
rault.  Let  Messrs.  D.  and  H.  be  cited  and  petitioner's 
transit  allowed,  by  ship  Diane. 
Notice  served  to  D.  and  H. 

Decision  in  Civil  Suits.  Jan.  29,  1729. 

1.  Bion  vs.  Duval  and  Herpin.  Council  confirms 
agreement  to  Jan.  9.     Execution  ordered. 

Costs  divided. 

2.  De  la  Livaudais  vs.  Kolly.  Respite  of  four 
months  allowed  for  adjustment  of  C6ard  estate's 
accounts. 

3.  Kolly  vs.  Massy.  M.  in  default,  and  subject  to 
costs. 

Judgment  for  K. 

Petition  to  Recover  Sale  Proceeds.    Feb.  1,  1729.     Mr.  Rossard 
claims  an  aggregate  amount  of  247  francs  from  Cari- 
ton,  teilor,  due  on  bills  of  sale. 
Action  allowed. 

Petition  of  Recovery.    Feb.  1,  1729.     Claude  Trennaunnay  Chan- 
fret  claims  200  francs  from  Pierre  de  Manadfi,  due  on 
sale  of  a  horse,  valuation  made  by  Mr.  de  Noyan,  Sr. 
Action  allowed. 

Decisions  in  Two  Suits.  Feb.  5,  1729. 

1.  Rossard  vs.  Roger. 

Judgment  for  plaintiff. 

Roger  in  default  and  subject  to  coste. 

2.  Dumanoir  vs.  Bourbault,  and  Kolly,  parties  dis- 
trained. 

Further  procedure  outlined. 


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Records  of  the  Superior  Council  of  Louisiana  829 

Petition  of  Recovery.    Feb.  17,  1729.    Langlois,  tailor  claims  89 
francs  from  one  Bonne  Estof e,  German,  and  asks  that 
Boiine  Estofe  be  cited.    Meanwhile,  let  seizure  be  al- 
lowed. 
•    Approved,  and  L.  may  distrain  at  his  own  risk. 

Decisions  in  Civil  Suits.  Feb.  26,  1729. 

1.  Rossard  vs.  Bourbault. 

B.  in  default;  must  pay,  plus  costs. 

2.  Charles  Droy  vs.  Noel  Buisson. 

Dismissed. 
Costs  divided. 

3.  Langlois  vs.  Bonne  Etoffe. 

Claim  allowed. 

(Antoine  Lowe,  alias  Langlois). 

Petition  For  Sanction  of  Sale.  March  9, 1729.  Corporal  Beaus6- 
jour,  who  has  recently  married  the  widow  Cardon,  has 
sold  his  former  house  to  one  Langlois,  locksmith,  and 
acquired  a  house  from  Company's  employ^  Michel. 
Council  will  please  to  ratify  sale. 
Agreed;  Perier,  Delachaise,  Brusl6. 

Letter  From  Terrisse  De  Teman  to  Rossard.  Aux  Cascanias. 
March  15,  1729.  Hoping  that  Madame  R.  has  arrived 
.  safely  in  "your  Capital."  Walnut  wood  could  not  be 
obtained ;  nobody  sawing,  but  all  being  busy  with  seed- 
ing. R.'s  debtor  Leonard  puts  off  paying,  but  writer 
will  get  what  he  can. 
He  sends  25  hams. 

Receipt.    March  19,  1729.     Senet  certifies  that  he  has  been  paid 
in  full  by  Monsieur  Bapache  for  the  rent  of  a  house. 

Lemesle  Alias  Bellegarde  vs.  Pascal.    March  26,  1729.     Out  of 
Court.     Costs  divided. 

Petition  to  Attend  Hearing.    March  28,  1729.     Guillaume  Bous- 
erand  alias  Sansf aeon  claims  90  francs  from  Blanpain. 
Action  allowed. 

Petition  of  Recovery.    March  29,  1729.    Jean  Baptiste  Faucon 
Dumanoir  seeks  to  collect  4000  francs,  or  net  residue 


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330  The  Louisiana  Historical  Qiuirterly 

thereof,  from  "flush"  Mr.  KoUy,  who  eludes  payment. 
Action  allowed. 

Petition  of  Recovery.    March  29,  1729.     Councillor  Prat  seeks  to 
collect  500  francs  from  Malon,  tailor.     Debt  was  to  be 
paid  in  rice  and  corn. 
Action  allowed. 

Petition  of  Recovery  By  Sale.  April  2, 1729.  Lucien  Poir6,  gun- 
smith, claims  200  francs  from  estate  of  late  Blanvil- 
lain,  and  asks  to  sell  the  latter's  lot  in  Royal  Street. 

Seeing  that  Poire  has  paid  B.'s  debts,  Attorney  Gen- 
eral Fleuriau  permits  the  said  sale. 

Council  agrees.  Proceeds  to  cancel  P.'s  claim. 

Petition  of  Recovery.    April  2,  1729.    De.  Morand  claims  12  bar- 
rels of  rice  from  Sieur  Bimond. 
Action  allowed. 

Decisions  in  Sundry  Suits.  April  2,  1729. 

1.  Dumanoir  vs.  KoUy  and  Droy.  K.  and  D.  to  pay 
4000  francs  and  costs. 

2.  Trennay  Chanfret  vs.  Pierre  de  Manad^.     P.  de 
M.  to  pay,  plus  costs. 

3.  Guillaume  Bouserand  (Sansfacon)  vs.  Blanpain. 

Blanpain  to  pay  plus  costs. 

4.  SCRAWL  shall  be  released  on  condition  that  his 
security  pay  400  francs  for  damage. 

Partly  torn. 

Petition  to  Recover  Wages.    April  5,  1729.     Jacques  Guillotot, 
alias  DuSablon  claims  133  francs    residue  wage  ac- 
count, from  Sieur  Chassin,  former  officer  of  the  Com- 
pany in  Illinois,  but  now  domiciled  at  N.  0. 
Action  allowed. 

Decisions  in  Two  Suits.  April  9,  1729. 

1.  Guillotot  alias  DuSablon  vs.  Chassin. 

C.  to  pay  given  claim;  he  may  recover  else- 
where. 

2.  Prat  vs.  Malon. 

Malon  in  default;  must  pay,  plus  costs. 


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Records  of  the  Superior  Council  of  Louisiana  831 

Petition  For  Abatement  of  Account.  April  25,  1729.  Bourbeaii 
pleads  that  he  never  refused  to  pay  Mr.  Dejoux,  save 
that  D.  should  allow  for  the  10  days  while  he  stayed 
with  B.,  and  was  nourished  and  laundried.  Let  the 
account  be  reduced  by  90  francs,  ox  whatever  sum 
the  Council  may  approve. 

Petition  of  Recovery.    April  25,  1729.    Corporal  Robert  claims 
79  francs,  6  sous  from  Malon,  tailor. 
Action  allowed. 

Decisions  in  Sundry  Suits.  April  27,  1729. 

1.  St.  Martin  vs.  Massy.  Within  a  fortnight,  par- 
ties are  to  name  arpitrators  (arpitres,  Teutonism), 
or  else  the  Court  will  do  so. 

2.  Estienne  Benson  vs.  Graslin. 

Default. 

3.  Nicolas  Rousseau  vs.  Bergison. 

B.  to  pay. 

4.  Millon  vs.  DeVerteuil. 

DeV.  in  default;  must  pay. 

Petition  of  Recovery.  April  28,  1729.  Antoine  Rivierre  com- 
plains that  his  wife  was  overcharged  by  her  employer 
Voysin,  who  drew  200  francs  from  the  Company  on 
her  accounts  when  she  came  from  France,  and  fur- 
nished her  some  supplies  not  equivalent  of  that 
amount.  Let  valuation  be  made  and  the  deficit  re- 
funded. 

Action  allowed. 

Remonstrance.  April  20,  1729.  Arnaud  Bonnaud  objects  to  be- 
ing summoned  to  pay  1678  francs  claimed  by  Mr. 
Kolly,  and  supposed  to  be  owing  to  Ste.  Reine  grant. 
First,  Mr.  K.  failed  to  show  his  warrant  proceeding 
against  A.  B.;  next,  A.  B.  is  merely  the  agent  of 
Messrs.  Perier  and  De  la  Chaise;  Action,  if  war- 
ranted at  all,  should  be  brought  against  them. 
Either  nonsuit  Mr.  K.,  or  let  him  wait  till  some  pend- 
ing accounting  is  finished,  when  the  balance  bids  fair 
to  favor  the  side  of  A.  B.'s  principals. 


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332  The  Louisiana  Historical  Quarterly 

Decisions  in  Sundry  Suits.  April  30,  1729, 

1.  Kolly  vs.  Bonnaud. 

Four  months  allowed  for  proper  accounting. 
Costs  reserved. 

2.  Canceled. 

3.  Pierre  Francois  Dejoux  vs.  Ren6  Boyer.     R.  B. 
in  default  and  plaintiff  nonsuited. 

Rest  of  passage  torn. 

Complaint  in  Assault  Case.  May  2, 1729.  When  Surgeon  Pierre 
Francois  Dejoux,  usually  resident  on  the  Dasfeld 
grant  aux  Chaouachas,  asked  his  fees  of  one  Chape- 
ron, the  latter  answered  with  insults  and  abuse,  and 
also  violently  attacked  the  surgeon,  leaving  him 
bruised  and  wounded.  Prosecution  desired. 
No  note  by  the  Court. 

Decisions  in  Sundry  Suits.  May  7,  1729. 

1.  Antoine  Maguire  and  his  wife  vs.  Voisin. 

Plaintiffs  nonsuited. 

2.  Robert  vs.  Malon. 

M.  in  default;  judgment  for  R. 

3.  Dejoux  vs.  Bourbeau. 

Further  pending. 

Petition  in  Slave  Suit.  May  4,  1729.  Pierre  Lantaud,  tailor, 
moves  for  the  citation  of  Francois  Carriere,  to  prove 
that  L.  paid  for  a  certain  negress  consigned  to  him 
by  Mr.  Durand,  and  belonging  to  the  late  Mr.  Re- 
mond,  whose  widow  is  now  Madame  L.,  petitioner's 
wife.  Otherwise,  let  negress  and  her  increase  be  re- 
turned. 

Action  allowed. 

Petition  of  Recovery.    May  9,  1729.     Nicolas  Noiset  claims  a 
residue  wage  account  of  160  francs  from  Mr.  Moran. 
Action  allowed. 

Surgeons'  Report.  May  13,  1729.  Alexandre  and  P.  de  ManadS 
find  some  obscurity  in  the  terms  of  agreement  be- 
tween Messrs.  Dejoux  and  Chaperon;  but  all  things 
considered,  they  would  fix  the  damages  at  50  francs. 


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Records  of  the  Superior  Council  of  Lotdsiana  J<3S 

Petition  to  Prosecute.  May  18,  1729.  Phillippe  Francois  Vel- 
lart,  carpenter,  complains  that  he  falsely  accused  of 
robbery  by  one  Le  Page.  Let  Le  Page  be  summoned 
to  prove  his  charges,  and  fined  if  he  cannot  sustain 
them. 

Notice  served  to  Le  Page. 

But  Attorney  General  Fleuriau  turns  the  case 
against  Vellart,  for  known  disorderly  actions,  and 
orders  him  committed  to  prison  with  a  view  to  trial. 

Partly  torn. 

Petition  of  Recovery.  May  21,  1729.  Nicolas  Henry  agreed  to 
sell  a  lot  of  his  to  Mr.  D'Auseville  for  500  francs. 
Council  for  technical  reasons,  disallowed  the  sale,  but 
nevertheless  the  transfer  was  tacitly  effected  and  Mr. 
D'A.  is  in  actual  possession.  Mr.  D'A.  now  takes  ad- 
vantage of  technicalities  to  "economize"  500  francs 
at  the  expense  of  N.  H.  Let  Mr.  D'A.  be  cited  to  pay 
500  francs  in  question. 

Action  approved  by  Baron. 

Noticed  served. 

Petition  of  Recovery.  May  23, 1729.  Surgeon  Pierre  de  Manad6 
and  his  wife  complain  that  Baschemin  and  his  wife 
refuse  payment  of  15,000  francs  agreed  on  sale  of 
land,  as  by  contract  of  Nov.  12,  1727.  Complex  ex- 
cuses are  urged  by  Baschemin,  but  the  debt  remains 
valid  and  should  be  paid.  Either  let  settlement  be 
effected,  or  else  release  petitioners  from  furnishing 
the  wood  which  had  been  promised  to  B.  from  plain- 
tiffs' property. 
Action  allowed. 

Petition  For  Second  Copy  of  Marriage  Contract.     May  24,  1729. 
Joseph  Carriere   (Signed:  Joseph  Carrier)   has  lost 
the  first  copy  of  his  marriage  contract,  and  would 
have  Mr.  Rossard  supply  another  copy. 
Mr.  R.  is  enjoined  to  do  so.  Delaichaise. 

Petition  of  Recovery.  May  25,  1729.  Charles  Droy,  on  behalf 
of  the  late  Mr.  de  Mandeville  and  parties  interested  in 


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384  The  Louisiana  Historical  Quarterly 

Ste.  Catherine  grant,  claims  1068  francs  and  14  sous 
from  Mr.  Tixerand. 

Notice  served,  and  word  left    with    "Martin    his 
savage." 

Sale  of  Slave.  Natchitoches.  May  28,  1729,  Londain  has 
bought  of  St.  Julien  a  negress  named  Combasla,  for 
1300  francs  payable  in  goods  at  store  price  at  N.  0.  L. 
has  also  paid  on  account  an  Indian  slave  rated  at 
540  francs,  and  20  lajdng  hens.  Provisos  in  case  of 
illness. 
Witnessed  by  Duplessis  and  P.  Tostain. 

Remonstrance.  May  28,  1729.  Raymond  Amysault  Esquire  D'- 
Auseville,  regardless  of  his  position  as  one  of  the  Su- 
perior Councillors,  has  been  cited  like  a  nondescript 
commoner,  under  signature  of  Mr.  Baron,  a  fellow 
councillor.  Mr.  B.  should  have  meditated  against 
such  an  ignoble  slur  on  one  of  the  constituted  dispens- 
ers of  justice  in  the  Colony.  Councillor  D'A.  makes 
no  claim  to  the  porperty  in  question,  and  is  not  a 
partner  to  any  transactions  of  others  involved.  Let 
Nicolas  Henry  be  nonsuited. 
Approved,  and  notice  served. 

Decisions  in  Sundry  Suits.  May  28, 1729. 

1.  Nicolas  Henry  vs.  D'Auseville. 

Adjourned. 

2.  Canceled. 

3.  De  Manad6  and  wife  vs.  Baschemin. 

Defendant  in  default. 
Judgment  for  plaintiffs. 

Petition  to  Recover  Property.  May  31,  1729.  Nicolas  Henry, 
settler  below  Pointe  St.  Antoine,  complains  that  while 
undergoing  medical  treatment  at  N.  0.,  he  has  been 
deprived  of  his  property  by  the  misrepresentations  of 
one  Dupre  de  Tarbonne,  pleading  spurious  title  of 
possession.  Let  D.  de  T.  prove  his  "rights,"  or  else 
be  evicted  and  held  for  damages. 
Action  allowed. 


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Records  of  the  Superior  Council  of  Louisiana  885 

Petition  For  Indemnity  For  Improvements.    May  31,  1729.    Ni- 
colas Henry  had  cleared  some  land  which  was  found 
on  surveying,  to  belong  to  Mr.  Dosville  (D'Auseville). 
Let  Mr.  D.  be  cited  and  ordered  to  clear  equivalent 
land  for  N.  H. 
Action  allowed:  BruslS. 
Duplicated. 
Petition  to  Recover  Hire  of  Slaves.    May  31,   1729.    Morisset, 
employ^,  seeks  to  collect  from   one   Adrien   Gilbert, 
three  months  and  26  days  of  hire,  at  600  francs  a 
year,  of  two  negroes.     Reference    to   corroborating 
contract. 
Action  allowed. 

Criminal  Procedure.  New  Trial  Ordered.  June  11,  1729.  Ow- 
ing to  some  irregularities  in  the  proceedings,  Coun- 
cil annuls  the  former  trial  of  one  Joseph  Eraff, 
charged  with  fatally  wounding  his  partner  La  Biche^ 
settler  at  Fort  Cond6,  Mobile.  It  is  now  ordered  that 
the  Attorney  General  shall  go  to  Mobile,  where  a  new 
trial  will  be  instituted  before  Councillor  Bru.  The 
culprit  shall  be  transferred  to  prison  at  N.  0.  (Graff, 
in  29^«) 

Signed:   Perier,  Delachaise,  Brusl^,  Prat,  Baron,. 
D'Auseville. 

Remonstrance.  June  11,  1729.  Raymond  Amyault  D'Auseville, 
after  noting  that  Nicolas  Henry  died  yesterday  in  the 
Hospital  reviews  in  tangled  detail  the  deceased's  er- 
roneous litigation,  and  urges  that  none  of  it  applied 
pertinently  to  Councillor  D'Auseville.  The  recent 
clearing  contention  (a  matter  of  burnt  cane  at  best) 
should  have  been  directed  agiainst  the  true  proprietor, 
Terebonne.  Madame  Henry  is  merely  driven  by  other 
parties:  let  her  be  nonsuited  and  answerable  for 
costs. 
No  note. by  Court. 

Petition  of  Recovery.    June  9  and  18.     Pierre  Schmitt,  German, 
seeks  to  recover  from  Rodolph  Guilland,  74  francs  in 
equivalent  for  some  rice  and  a  cash  collection. 
Action  allowed. 


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336  The  Louisiana  Historical  Quarterly 

Petition  to  SeU  A  Lot.  June  20,  1729.  Jean  Baptiste  Bourbeau 
complains  that  Henry  Bucoy  had  made  him  give  up 
a  lot  of  ground  in  this  town,  in  restitution  for  an  ox 
of  J.  B.  B.'s  that  was  hamstringed.  Let  Bourbeau 
sell  the  lot  and  pay  the  ox  from  proceeds. 
Permitted^  July  1,  1729. 

Extract  From  Marriage  Contract,  June  22,  1729.  Parties: 
late  Joseph  Moreau,  widower  of  late  Jeanne  Dam- 
ourette,  and  Marie  Th6rese  Le  Grand,  widow  of  late 
Pierre  Drilland,  employ^.  Clauses  showing  what  the 
groom  received  from  bride. 

^Petition  To  Appoint  Guardian.  July  1,  1729.  Elizabeth  Thom- 
as, widow  of  late  Nicholas  Henry  moves  for  appoint- 
ment of  a  Guardian  for  her  minor  daughters,  Cathe- 
rine and  Louise. 

Approved:  Prat: 

Torn. 

Chmrdian  Appointed.    In  sequel  to  the  formalities  of  the  case, 
Elizabeth  Thomas  is  herself  named,  and  confirmed 
by  the  Court,  as  guardian  of  her  two  minor  daugh- 
ters.    See  29«^  29»\ 
Partly  torn. 

Dedsiorys  in  Sundry  Suits.  *      July  2,  1729. 

1.  Pierre  Schmitt  vs.  Rodolph  (Guilland). 

Defendant  in  default.     He  shall  pay  rice  and 
costs. 

2.  Durivage  vs.  Morisset,    Contingent    on    further 
procedure. 

3.  Morisset  vs.  Adrien  Gilbert.     Net  settlement  or- 
dered. 

4.  Canceled. 

5.  Pierre  Lartault  vs.  Carriere. 

Adjourned. 
Charred. 

Petition  of  Recovery.    July  4, 1729.     Francois  Alix  alias  La  Roze 
holds  a  note  of  Pierre  St.  Julien,  settler  at  Cannes 


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Records  of  the  Sttperior  Council  of  Louisiana  887 

Brusl^es,  for  300  francs,  dated  D.  11,  1728;  value  re^ 
ceived  in  beer.    Let  St.  Julien  be  cited. 
Action  allowed. 

Letter  of  Terrisse  De  Teman  to  Rossard.  July  5,  1729.  Ac- 
knowledging letter  transmitted  by  Mr.  DutisnS. 
Would  fain  be  near  R.  since  ''th^e  glass  in  hand  is  a 
great  bond  to  maintain  frienship."  Som6  brandy  re- 
ceived, but  this  is  too  plentiful  for  medium  of  ex- 
change in  fur  trade.  Better  commodities  in  this 
trade  are  powder,  vermilion,  Limbourg  (dry  goods 
article),  cutlery  and  large  brassware.  Sorry  to 
hear  of  heavy  mortality  in  your  capital."  Reference 
to  writer's  wrecked  boat  at  Ouabache  (Wabash). 
Sundry  matters  of  interest  in  this  letter. 

Port  Captain  Senet's  Account  Book.  July  5, 1729.  Including  Mo- 
bile, Balise,  and  New  Orleans.  Writer  apparently  of 
German  source:  birougue  for  pirogue;  pileist  for  bil- 
let. One  section  shows  Company's  marine  payroll 
from  Jan.  1,  1729.  For  the  handwriting  (unsigned), 
compare  28^^  29";  also,  spelling  pileist  in  27"%  137, 
138;  ditto,  sequante.  Transactions  range  from  1725 
to  1729.  Many  canceled  entries,  and  the  entire  docu- 
ment is  wanting  in  orderly  arrangement.  Possibly 
its  erratic  sp^^Ding  is  the  most  interesting  detail  now. 

Petition  to  Recover  Salt.  July  9, 1729.  Parties  interested  in  the 
shop  move  for  the  citation  of  Mr.  Grace  to  pay  them 
1000  lbs.  of  salt,  for  which  he  has  failed  to  account  to 
them  according  to  invoices  with  storekeeper  Pellerin. 
Bill  called  for  7600  lbs. ;  Mr.  Grace  received  only  6600. 
Action  allowed. 

Judgment  in  Land  Suit.  July  9,  1729.  One  Terrebonne,  hav- 
ing falsely  obtained  title  to  the  plantation  of  the  late 
Henry.  T.  shall  vacate  and  Henry's  widow  and  chil- 
dren recover  possession. 

Signed:  Baron  who  acts  for  absent  Attorney  Gen- 
eral. 


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888  The  Louisiana  Historical  Quarterly  ^ 

Petition  of  Recovery.  July  12,  1729.  Cerv6  seeks  to  collect  100 
francs  of  Pierre  de  St.  Julien,  due  on  a  note. 

(Possibly  the  plaintiff  is  Senet,  so  written,  and 
also  Sern6,  on  29^«») 
Action  allowed. 

Petition  of  Recovery.    July  12,  1729.    Surgeon  Sanson,  of  Can- 
nes Brusl^s,  holds  notes  against  Pierre  de  St.  Julien 
for  amount  of  605  francs.    Let  St.  J.  be  cited. 
Action  allowed. 

Decisions  in  Two  Suits.  July  16,  1729 

1.  "Parties  interested  in  the  shop"  vs.  Grace. 

Defendant  discharged  from  claim  of  salt. 
Costs  divided. 

2.  Pierre  Lartaut  vs.  Francois  Carriere. 

Inquiry  ordered  at  Mobile. 
Question  of  ownership  of  a  negress. 

Acknowledgment  of  Draft.  July  18,  1729.  Massy  has  received 
original  duplicate  and  triplicate  draft  dated  past  Oc- 
tober 10,  drawn  by  one  Thomassin  Junior,  at  6  weeks' 
sight,  on  his  father,  dealer  in  vinegar  at  Paris.  M. 
promises  to  pay  given  sum,  1100  francs,  on  advice 
from  his  correspondent  that  the  draft  has  been  hon- 
ored.    Draft  was  tendered  to  M.  by  Babaz. 

Memorandum.  July  18,  1729.  '^'A  coat,  jacket  and  breeches 
with  old  silver  buttons ;  a  wooden  trunk  without  lock. 
Francoeur  has  declared  that  the  late  Babaz  sold  his 
large  boiler  to  Mr.  Carriere." 

(The  two  papers  were  found  pinned  together). 

Petition  of  Recovery.  July  19,  1729.  Pierre  Dreux  advanced 
1700  lbs.  of  flour  to  KoUy  grant  in  1721  and  1722, 
when  flour  was  worth  one  franc  a  pound;  but  was 
willing  to  settle  for  15  sous  a  pound.  Mr.  K.  would 
pay  only  6  sous  a  pound;  let  him  be  cited  to  pay  1& 
sous,  or  else  agree  to  arbitration. 
Action  allowed. 

Petition  to  Dissolve  Partnership.  July  23,  1729.  Pierre  Paul 
Caussy  and  Laurent  Boissier  had  agreed  with  the 


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Records  of  the  Superior  Council  of  Louisiana  88ft 

Company  to  conduct  a  pottery  concern  in  partnership. 
But  owing  to  personal  incompatibility,  the  partners 
beg  to  be  separated,  on  terms  described.  Council 
accedes,  and  Mr.  Brusl6  shall  take  sole  charge  of  the 
manufacturing  establishment.  Provisos  on  manner 
of  settlement. 

Signed:  Perier  Delachaise,  Brusl& 

Decision  in  Suit  of  Recovery.    July  23,  1729.    St.  Julien  shall 
pay  Francois  Alix  300  francs,  as  due  on  given  note. 
Notice  served  to  St.  J.,  August  13, 1729. 

Decisions  in  Sundry  Suits.  July  23,  1729. 

1.  Pierre  Dreux  vs.  KoUi. 

Adjourned  for  proving  claim. 

2.  Charles  Droy  i;«.  Tisserand. 

Judgment  for  C.  D. 
8.    Canceled. 

4.  Francois  Alix  vs.  St.  Julien.  For  F.  A. 

5.  Senet  vs.  St.  Julien.    For  Senet. 

6.  Sanson  vs.  St.  Julien.    For.  St.  Sanson. 

7.  Certain  surgeons  of  the  Company  tender  oath 
in  pledge  of  faithful  service. 

Petition  of  Recovery!  July  26,  1729.  Councillor  Antoine  Brus- 
16  holds  a  note  for  721  francs,  endorsed  by  Mr.  de  la 
Frenifere  in  favor  of  Mr.  B.  Mr.  Francois  CarriSre, 
who  issued  the  note,  keeps  putting  off  payment;  let 
him  be  cited. 
Action  allowed. 

Petition  For  Voiding  of  Will  July  30,  1729.  Mr.  Rossard,  at- 
torney  for  vacant  estates,  discredits  a  "pretended 
will"  of  one  La  Biche,  in  favor  of  his  former  partner 
Joseph  Graff,  condemned  to  be  hanged  for  fatally 
stabbing  LaBiche.  The  latter's  creditors  are  not  to 
be  ignored,  and  the  untenable  will  should  be  annulled, 
and  the  goods  of  LaBiche  sold. 

Approved  and  so  ordered  by  Attorney  General  Fleu- 
riau. 

Petition  to  Sell  Real  Estate.  July  30, 1729.  Mr.  Rossard  moves 
for  the  sale  of  half  lot  and  house  belonging  to  one 


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840  The  Louisiana  Hiatortcai  Quarterly 

Durandv  formerly  Company  storekeeper,  and  fugi- 
tive since  Jan.  1725.  Proceeds  to  satisfy  rightful 
claims. 

Approved:  Perier,  Delachaise,  Fleuriau,  Brusl^, 
Prat,  D'Auseville. 

Sale  of  Real  Estate  Ordered.  July  30,  1729.  Auction  of  a  hall 
lot  in  Royal  Street,  and  house  with  shingle  roof,  to- 
gether with  appurtenances,  to  be  held  on  August  8. 
Property  belonged  to  former  storekeeper  Durand, 
now  fugitive.  Proceedings  moved  by  Mr.  Rossard, 
attorney  for  vacant  estates. 
Blurred  and  stained. 

Sale  of  Real  Estate.  Formal  Order.  July  30,  1729.  Official 
ruling  to  same  intent  as  in  agridged  counterpart  No. 
29^^ 

Signed:  Perier,  Delachaise,  Brusl6.  D'Auseville, 
Prat. 

Annulment  of  Will.  July  30,  1729.  Council  accedes  to  petition 
of  Mr.  Rossard,  annuls  the  said  will,  and  orders  ap- 
propriation of  deceased's  estate.  From  the  proceeds, 
a  requiem  service  shall  be  allowed  on  behalf  of  La 
Biche. 

Decisions  in  Two  Suits.  July  30,  1729. 

1.  Dreux  vs.  KoUy.     Refered  to  Messrs.  Coustillas 
and  Roquet. 

2.  Attorney  General  vs.  Roger,  formerly  storekeeper 
of  Company. 

Adjourned. 

Agreement  to  Abide  by  Arbitration.  August  1,  1729. 

Undersigned  Caussy  (Pierre  Paul)  and  Bossier 
(Laurens)  have  agreed  to  defer  to  arbitration  by 
Messrs.  Mathurin  Dreux  and  Jacques  Larche,  in  re- 
gard to  grain,  sweet  potatoes  and  work  on  planta- 
tion; and  in  case  of  dispute,  a  third  arbitrator  shall 
decide. 

Arbitration  Report.  Pottery  Tract.  "La  Fayencerie."  Aug. 
1,  1729.  Messrs.  Jacques  Larche  and  Mathurin 
Dreux  submit  their  estimate  as  follows:  com  crop, 


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Records  of  the  Superior  Council  of  LouiMana  341 

45  barrels  in  ear.  Sweet  potato  crop,  60  barrels. 
Fuel,  7  cords,  at  5  francs,  35  francs.  Ditching,  40 
francs.  Poultry,  67  1-2  francs.  Items  of  fencing,  100 
and  40  and  60  francs. 

Petition  to  Recover  Heifer.  August  3,  1729.  Jacques  de  Cous- 
tilhas,  officer  of  this  garrison,  shows  that  a  dark 
brown  heifer  of  his,  with  some  gray  hair  on  her  fore- 
head and  white  markings  between  fore  legs,  first 
strayed  among  the  cattle  of  Madame  Chamily,  and  is 
now  in  the  herd  of  Madame  Brusl6,  who  claims  own- 
ership and  refuses  to  relinquish.  Let  Madame  B.  be 
cited  to  surrender  heifer  on  proof  supplied  by  J.  de 
C. 

Heifer's  present  age,  about  21  months. 

Action  allowed. 

Petition  to  Stay  Judgment.  August  3,  1729.  Tixeran,  who  was 
cited  on  motion  of  Mr.  Droy,  was  prevented  by  bad 
weather  from  attending  Court,  with  reference  to  a 
protested  draft.  Compensation  besought,  and  let  the 
ruling  which  was  rendered  against  the  petitioner  stay 
short  of  execution. 

Action  allowed,  and  notice  served  to  Mr.  Droy. 

Arbitration  Report.  August  4,  1729.  Dreux  vs.  Kolly. 
August  4,  1729.  Messrs.  Coustilhas  and  Raquet,  in 
view  of  the  notorious  high  price  of  flour  at  the  time 
concerned  (years  1721,  1722  and  1723),  when  bread 
sold  as  high  as  30  sous  a  pound,  recommend  that  the 
present  claim  be  settled  on  basis  of  15  sous  a  pound 
for  bread,  as  represented  by  given  amount  of  flour. 

Inventory  Boissier-Caussy.    August     4,     1729.     Remnant     of 
goods  entered  on  book  for  180  francs,  6  sous. 
Goods  not  entered,  122  francs,  5  sous. 
Detailed  miscellany  follows ;  to  total  footing  at  1261 
francs,  19  sous.     Signed:  Boissier,  Caussy. 

Petition  of  Recovery.  August  6,  1729.    Francois  Carridre  claims 
1000  francs  of  Mr.  Tixerand,  due  on  his  note  of  July 
14,  1725. 
Action  allowed. 


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342  The  Ltmisiana  Hiatarical  Quarterly 

Heifer  Suit  Adjourned.  August  6, 1729.  Louis,  by  the  grace  of 
God  King  of  France  and  Navarre,  greets  all  who  may 
read  these  presents;  whereas  his  delegated  Court  of 
the  Superior  Council,  finds  plaintiff  and  defendant 
alike  insistent  on  owning  the  disputed  heifer;  and 
so  orders  the  parties,  Officer  Coustilhas  and  Madame 
BruslS,  to  produce  their  respective  proofs  before 
Councillor  Prat  a  week  hence. 

Remonatrance.  August  6,  1729.  Charles  Roger,  formerly 
storekeeper  and  bookkeeper  for  Mr.  Crozat,  has  been 
accused  of  dishonest  accounting.  He  repudiates  the 
charges,  and  complains  of  their  vague  laxity.  Even 
official  Mr.  Rossard  brings  general  accusations  void  of 
specific  support.  C.  R.  admits  the  chances  of  unguard- 
ed error ;  wilful  dishonesty  he  will  not  admit,  and  he 
challenges  alleged  proof  of  it.  He  kept  his  books  in 
condensed  form  for  practical  convenience;  but  has 
written  data  wherever  needed. 

Petition  in  Remonstrance.  August  6,  1729.  Charles  Roger  files 
opposition  to  a  certain  reversal  of  attachment  pro- 
ceedings, obtained  by  Messrs.  Massy  and  Quenot.  C. 
R.  did  not  seek  to  rob  the  King,  nor  to  collect  facti- 
tious debts.  There  may  be  novelty  in  C.  R.'s  ac- 
counting ;  fraud  there  is  none.  Let  this  opposition  be 
allowed,  and  full  proof  demanded  of  those  who  charge 
C.  R.  with  false  dealing. 
Action  allowed,  and  notice  served  to  Massy. 

Decisions  in  Sundry  Suits.  August  6, 1729. 

1.  Brusl6  vs.  Francois  Carriere. 

Claim  to  be  paid. 
See  29". 

2.  De  Caustilhas  vs.  Madame  BruslS. 

Adjourned. 

3.  Droy  vs.  Tixerant.    Settlement  on  net  basis. 

Costs  divided. 

4.  Attorney  General  vs.  Charles  Roger. 

Further  in  process. 
Costs  reserved. 
Blurred  and  slurred.  ' 


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Rec&rds  of  the  Superior  Council  of  Louisiana  848 

Petition  of  Recovery.  August  8,  1729.  Claude  Trenaunnay 
Chanfret  moves  for  the  citation  of  Mr.  Rossard,  At- 
torney, to  pay  25  francs  and  7  sous,  French  money, 
which  petitioner  once  paid  to  an  innkeeper  Daure  at 
Port  Louis,  on  behalf  of  the  late  Pouyadon  de  La 
Tour. 
Action  allowed. 
Duplicated. 

Petition  For  Execution  of  Arbitration  Award.    August  9,  1729. 
Mr.  Dreux  begs  the  Council  to  cite  Mr.  Kolly  with  a 
view  to  execution  of  the  arbitration  sentence  render- 
ed on  August  4,  1729. 
Notice  served. 

Sale  of  Real  Estate  Advertised.  August  10,  1729.  Auction  of 
half  lot  and  house  in  Royal  Street.  Property  of  fug- 
itive storekeeper  Durand,  to  be  resumed  on  August 
22.  Highest  bid  thus  far  is  only  150  francs,  by  wig- 
maker,  La  Pierre. 
Stained. 

Summons  to  Testify.  August  11,  1729.  Sheriff  Dargaray  noti- 
fies Madame  Chamily  and  several  other  parties  to  ap- 
pear today  at  9  A.  M.  before  Councillor  Prat,  in  re- 
gard to  the  disputed  heifer.  Word  also  given  to  Ma- 
dame Brusl^. 

Testimony  on  Disputed  Heifer.  August  11,  1729.  Six  wit- 
nesses examined.  Only  indirect  and  hearsay  evi- 
dence returned.  Heifer  supposed  to  belong  to  Ma- 
dame Brusl6. 

Summons  to  Testify.  August  12, 1729.  Sheriff  Dargaray  notifies 
Mr.  and  Madame  Manad6,  Madame  Morisset,  Ma- 
dame Le  Moine,  Madame  Boissier  and  Mr.  Balcour  to 
appear  today  at  8  A.  M.  before  Councillor  Prat,  and 
give  testimony  in  regard  to  disputed  heifer.  Word  also 
left  for  Mr.  de  Chevalier  de  Lauboey,  where  Mr.  de 
C.  is  domiciled. 

Testimony  on  Disputed  Heifer.  August  12,  1729.  Witnesses 
merely  saw  the  heifer  with  Madame  Brusl6's  cattle; 


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844  The  Louisiana  Historical  Quarterly 

nothing  conclusive  is  brought  out  on  the  point  of  own- 
ership. 

Decisions  Between  Trenaunnay  Chanfret  and  Rossard.  August 
13,  1729.     R.  to  pay  claim. 

Item,  between  Dreux  and  KoUy. 

K.  in  default.  Arbitration  sentence  to  be  carried 
out. 

Petition  of  Recovery.  August  16,  1729.  Ren6  Galbee,  school- 
master with  Mr.  Renaud  D'Hauterive,  lived  in  that 
capacity  with  Madame  Rivard,  settler  at  Bayou  St 
Jean,  to  teach  her  children.  Madame  gave  her  note 
for  376  francs  and  15  sous,  but  instead  of  paying,  she 
answers  petitioner  with  "insults  atrocious."  Let  Ma- 
dame be  cited  to  pay  this  note,  and  also  to  return 
certain  goods  or  money  which  R.  G.  had  lent  her;  to 
wit,  toilet  paper,  and  cobbler's  item  of  25  sous  in  spe- 
cie. 

.  Action  allowed. 
Edges  worn. 

Petition  of  Recovery.    August  16,  1729.    Valeran  claims  a  res- 
idue  account  of  45  francs  from  Cariton,  and  a  further 
item  of  7  francs,  or  52  francs  total. 
Action  allowed. 

Petition  to  Recover  Medical  Fee.  August  17,  1729.  Baldit,  sur- 
geon, was  summoned  to  treat  the  late  Mr.  Artus  at 
Biloxi,  and  went  thither  with  Mr.  Tixerant.  Fee  was 
agreed  at  100  francs;  but  now  the  deceased's  widow 
is  married  again  to  one  Bonne,  who  answers  only  with 
abuse,  and  calls  the  surgeon  a  rogue.  Let  Bonne  be 
cited  to  pay  the  bill,  and  also  to  make  amends  for  said 
abuse. 

Action  allowed,  and  notice  served  to  Sieur  Bonne^ 
then  domiciled  with  Sheriff. 

August  23,  1729. 

Notice  to  Challenge  Witnesses.  August  19,  1729.  Sheriff  Dar- 
garay  submits  list  of  Madame  Brusle's  witnesses  to 
Mr.  de  Coustilhas,  who  shall  present  his  objections^ 
if  any. 


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Records  of  the  Superior  Council  of  Louisiana  345 

Decisions  in  Sundry  Suits.  August  20,  1729. 

1.  Coustilhas  vs.  Madame  Brusl6.    Adjourned  for 
further  investigation. 

2.  Francois  Carri^re  vs.  Tixerant.    Judgment  for 
C. 

3.  Ren4  Galb^e  t;^.  Widow  Rivard.  Adjourned. 

4.  Vallerand  vs.  Cariton.     For  V. 

Summons  to  Testify.  August  20,  1729,  Sheriff  Dargaray,  at 
the  instance  of  Jacques  Coustilhas,  notifies  sundry 
parties  to  appear  today  at  1  P.  M.  before  Councillor 
Prat,  in  regard  to  the  disputed  heifer. 

Testimony  on  Disputed  Heifer.  August  22,  1729.  Vague  and 
contradictory  evidence  on  color  of  heifer;  nothing  to 
the  purpose  on  ownership.  * 

(The  case  appears  to  stand:  no  evidence  whatever 
to  prove  that  the  heifer  belonged  to  Mr.  de  Coustil- 
has; whereas  popular  opinion,  report  and  impres- 
sion favor  Madame  Brusl^.) 

Sale  of  Real  Estate  Advertised.  Aug.  23,  1729.  Auction  of 
property  in  Royal  Street  to  be  resumed  on  Septem- 
ber 5.  Present  highest  bid,  of  La  Pierre,  is  250 
francs.    See  29»«. 

Receipt  to  Louis  Roy,  signed  AUemand.  Aug.  25,  1729.  Certi- 
fied by  Clerk  of  Council.  Signed:  Dargaray,  Ros- 
sard,  clerk. 

Petition  For  Discharge  From  Suit.  Aug.  26,  1729.  Jean  Bap- 
tiste  Massy  was  surprised  to  be  cited  on  motion  of 
former  storekeeper  Roger.  Mr.  M.  has  nothing  to 
do  with  accounts  in  question,  having  wound  up  his 
affairs  with  heirs  of  late  Guenot  fr^res  Mr.  M.  was 
in  France  when  contested  supplies  were  furnished. 
Let  M.  be  discharged.  Mr.  Roger  should  refer  his 
^       case  to  said  heirs.    Communicated  to  Mr.  Roger. 

Decisions  in  Sundry  Suits.  Aug.  28,  1729. 

1.      De  Coustilhas  vs.  Madame  Brusl^. 

Ownership  decided  for  Madame  B.     Plaintiff 
nonsuited.    See  29^<>«. 


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846  The  Louisiana  Historical  Qtiarterly 

2.    Roger  vs.  Massy, 

Further  in  process. 

Costs  reserved. 
8.     Baldit  vs.  DeBaune. 

For  Baldit. 

Costs  on  defendant. 
Slurred  and  partly  torn. 

Petition  to  Stay  Judgment.    Aug.  29,  1729.     Tixerant  objects 
that  he  was  unable  to  be  present  when  suit  was  de- 
cided against  him  and  in  favor  of  Carrifere.    Let  C. 
be  cited  for  further  pleading. 
Approved,  and  notice  served. 

Argument  in  Suit  of  Claims.  Sept  1,  1729.  Durivage  aims  to 
establish  the  point  that  Tixerant  owes  him  388  francs 
outstanding  since  February  1725.  D.  is  willing  to 
consider  accommodations,  but  insists  on  this  original 
claim  of  his  own. 

No  note  by  Court. 

X  26*  (Oct.  3,  1726.) 

Memorandum  of  Account.  Sept.  1,  1729.  "Monsieur  Tixerant, 
his  account  current  with  Durivage."  Feb.  1725.  Dr. 
Items  include,  pigeon  house,  48  days  work  at  6  francs 
a  day,  215  francs;  18  rafters,  54f;  fireplace, 
150  f.;  coating  of  three  cabinets,  20  f.;  800  oysters, 
9  f . ;  residue  for  cow,  50  f .    Total  debit,  498  f . 

Credit  itemSj  2  pigs  rated  by  experts  at  40  f .  each, 
80  f . ;  2  axes,  20  f . ;  cash,  10  f . 

Total  credit  110  f. 

Net  debit,  388  f. 

Report  on  Search  For  Illicit  Traffic.  Sept  2,  1729.  It  being  ru- 
mored that  the  officers  of  ship  St.  Michel  had  sold 
some  brandy  to  Mr.  de  Coustilhas,  contravening  the 
Commander  General's  orders:  Mr.\  Delachaise  and 
Mr.  Droy  make  inspection,  but  find  no  evidence  of 
the  alleged  breach  of  law. 
Partly  torn,  as  by  gnawing. 

Report  on  Search  For  Illicit  Traffic.  Sept  2,  1729.  Mr.  Dela- 
chaise and  Recorder  Rossard  inspect  the  premises  of 


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Records  of  the  Superior  Council  of  Louisiana  847 

Mr.  Dumanoir,  where  they  seize  some  brandy  and 
dry  goods  and  premises  of  Mr.  Vosin,  where  they 
seize  some  goods  known  as  "cloth  (or  linen)  of  Brit- 
tany."   Articles  from  ship  St.  Michel. 
Partly  torn,  blurred  and  slurred. 

Attachment  of  Funds  in  Contraband  Trade,  Sep.  3, 1729.  First 
Councillor  Delachaise  and  Recorder  Rossard  seize  the 
sums  of  1500  francs  and  1087  francs  against  Macma- 
hon,  an  officer  of  the  ship  St.  Michel ;  these  sums  pro- 
ceeding from  illicit  sale  of  goods.  The  law  in  question 
dates  back  to  August,  1717.  (Name  also  appears  as 
Marc  Mahon). 

Decisions  in  Two  Suits.  Sep.  3,  1729. 

1.  Tixerand  vs.  Francois  Carrifere.  Court  allows 
plaintiff's  opposition,  and  orders  defendant  to  re- 
fund 1000  francs. 

2.  De  Manad§  vs.  Baschemin.    Adjourned. 

Prosecution  For  Contraband  Trade.  Sep.  5,  1729.  Attorney 
General  Fleuriau  reviews  the  recent  proceeding  of  con- 
fiscation, and  orders  hearing  of  retailer  Marc  Mahon 
and  La  Follette  Descazeaux,  mate  of  the  St.  Michel, 
together  with  parties  Berthelonj  Dumanoir  and  Voisin. 
Other  measures  advised :  Delachaise. 

Seizure  of  Ship  St.  Michel.  Sept  5,  1729.  Councillor  Prat  and 
his  clerk  Gabriel  Gontier  formally  seize  the  St.  Michel, 
then  anchored  at  L^  Balize.  Captain  Lobry  protests 
that  he  was  not  plying  trade,  but  only  exchanging 
a  few  goods  for  transient  "refreshments."  He  dis- 
claims the  Councirs  jurisdiction,  and  will  appeal  in 
France.  Captain  Lobry  is  left  custodian  of  the  ship, 
Sept.  19,  1729.  Seals  are  withdrawn,  and  keys  re- 
turned to  Captain  Lobry,  discharged  from  custody  of 
seized  ship. 

Prosecution  For  Killing  Cattle.  Sept.  5,  1729.  Attorney  General 
Fleuriau  moves  for  the  trial  of  some  negroes  accused 
of  robbing  and  killing  heifers  for  fresh  meat. 

Approved :  Delachaise. 

Torn. 


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348  The  Louisiana  Historical  Quarterly 

Criminal  Procedure,  Cattle  Killing.  Sept.  5,  1729.  Examination 
of  negro  Changereau,  Bambara  by  nation,  aged  about 
20  years,  belonging  to  Adrien  Gilbert.  Ran  away  be- 
cause underfed.  Had  three  accomplices  (fellow- 
slaves).  It  was  Manade's  negro  who  killed  heifer  in 
question,  but  Changereau  ate  of  the  meat. 

Criminal  Procedure,  Cattle  Killing.   Sept.  5,  1729.    Examination 
-  of  negro  Francois,  unbaptized,  a  slave  of  St.  Julien's. 
Aged  about  25  years.     Had  no  part  in  robbing  and  kill- 
ing cattle,  but  stole  some  bacon  and  sold  it  to  another 
negro  for  tobacco. 

Criminal  Procedure,  Cattle  Killing.  Sept.  5,  1729.  Examination 
of  negro  Pierot,  Bambara  by  nation,  aged  apparently 
27  or  28.  Slave  of  Mr.  Dalby's  ran  away  because  too 
sick  to  work  and  afraid  of  punishment.  Admits  com. 
plicity  in  killing  a  "young  beast.'*  Stole  some  corn, 
but  no  hens.  (Corn  from  "desert  of  the  Jesuit 
Fathers.'') 

Criminal  Procedure,  Cattle  Killing.  Sept.  5,  1729.  Examination 
of  negro  Sabany,  Bambara,  Bambara  by  nation,  aged 
apparently  30  years,  a  slave  of  officer  Villamille.  Some 
comrades  gave  him  fresh  meat  in  a  cabin  of  Mr.  de 
Bienville's.  They  were  marooning,  but  Sabany  was 
not. 

Defense  in  Collection  Suit.  Sep.  9,  1729.  Mr.  Roquet  submits 
a  reasonable  plea  for  extension  of  time  to  Mr.  Basche- 
min,  now  pushed  by  "fickle"  Mr.  Manade  for  cash 
payments  which  B.  cannot  meet  at  short  notice.  He 
has  already  paid  back  some  flour,  and  a  third  of  the 
price  of  a  certain  plantation.  Mr.  B.  is  a  new  settler 
and  merits  lehiency.  Perhaps  he  is  just  as  good  a  deb- 
tor as  Manade  in  the  matter  of  the  Company's  ac- 
counts. 

No  note  by  court. 

Recusation  on  Ground  of  Kinship.  Sep.  10,  1729.  Councillor  An- 
toine  Brusle  files  legal  exemption  from  taking  part  in 
the  confiscation  proceeding  against  ship  St.  Michel; 


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Records  of  the  Superior  Council  of  Louisiana  349 

his  wife  (Demoiselle  Cecile  LeBlanc)  and  the  wife  of 
Captain  Lobry  of  St.  Malo,  being  second  cousins. 

Council  assents:  Delachaise,  Prat,  D'Auseville, 
Baron. 

Reference  to  a  statute  of  year  1667. 

Exception  Moved,  But  Disallowed.  /  Sep.  10,  1729.  Attorney 
General  Francois  Fleuriau  was  not  aware  of  the  "sen- 
seless" proceedings  of  confiscation  against  ship  St. 
Michel.  He  too,  pleads  exemption  on  ground  of  kinship ; 
his  wife  Pelage  de  Morieres  and  the  wife  of  Captain 
Lobry  are  second  cousins. 

Council  rejects  his  plea  for  the  reason  that  his  of- 
fice is  not  judicial,  but  only  participant  with  both  sides 
in  the  formalities. 

Perier,  Delachaise,  D'Auseville. 

Decisions  in  Two  Suits.  Sep.  10,  1729. 

1.  De  Manade  and  wife  vs.  Baschemin.     B.  to  pay 
300  francs  on  term  matured,  plus  interest.    Fur- 
ther proviso  concerning  revoked  attachment. 

2.  Attorney  General  vs.  Dumanoir  and  Voisin. 

Captain  Lobry  shall  be  heard  in  the  case. 

Investigation  Moved.     Sep.  13, 1729.     Attorney  General  Fleuriau 
calls  for  sifting  of  the  charge  that  the  officers  of  St. 
Michel  landed  and  sold  goods  along  the  River,  contrary 
to  law  of  1717. 
Action  approved:  Delachaise. 

Petition  of  Recovery.    Sep.  13,  1729.     Jean  Bte.  Meynard  moves 
for  the  citation  of  Mr.  Dubreuil  to  pay  a  note  trans- 
ferred by  R.  P.  Theodore. 
•  Action  allowed. 

Request  For  Suspense  of  Seizure.  Sep.  14,  1729.  Du  Breuil  an^ 
swers  that  he  does  not  refuse  to  pay  the  note  in  ques- 
tion ;  only,  first  let  the  distraint  be  waived  which  was 
imposed  by  R.  P.  Raphael  at  Chapitoulas, 

Summons  to  Testify.  Sep.  15,  1729.  Sheriff  Dargaray  notifies 
Messrs.  de  La  Loire  Flaucourd,  storekeeper  at  La  Be- 


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350  The  Louisiana  Historical  Qvxxrterly 

lize,  and  "Captain  of  Arms"  Douaze,  to  appear  today 
at  3  P.  M.  to  give  evidence  in  St.  Michel  affair. 

Testimony  in  St.  Michel  Affair.  Sep.  15,  1729.  (Scrawled) 
Witness  Claude  Doizet  (Douaze),  volunteer  on  board 
St.  Michel,  has  no  knowledge  of  illicit  sales  in  question. 
There  were  some  casks  in  the  longboat;  what  was  in 
them,  he  knows  not. 

Pierre  Louis  August  de  Loire  de  Flaucourt,  chief 
clerk  at  La  Blaise,  also  saw  some  liquor  in  the  long- 
boat, and  something  was  landed  at  the  plantation  of 
Mr.  de  Coustilhas ;  uncertain  whether  it  was  brandy  or 
wine.  ^ 

Sep.  20,  1729.  Joseph  Le  Houx,  first  pilot  of-  the 
St.  Michel  knows  of  three  or  four  casks  in  the  long- 
boat, intended  for  barter  in  the  way  of  grain  and  poul- 
try.    Whether  goods  were  landed,  he  is  not  aware. 

Attachment  of  Funds.  Sep.  17,  1729.  Sheriff  Dargaray  seizes 
500  francs  plus  interest  and  costs,  against  one  Bunel; 
this  representing  B.'s  debt  to  Malon.  Seizure  moved 
by  Mr.  Prat. 

Notice  served  to  B.  and  M.  to  attend  subsequent 
hearing. 

Petition  of  Recovery.  Sep.  17,  1729.  Ren6  Boyer  claims  of  Tix- 
erant  a  cash  debt  of  181  francs,  and  he  would  also 
have  T.  make  equivalent  return  for  some  clearing  op- 
erations which  R.  B.  completed  on  a  part  of  his  land 
which  by  Mr.  Broutin's  surveying  has  been  ceded  to  T. 
Said  operations  included  ditching.  Action  allowed. 

Decision  Between  Meynard  and  Dubreuil.  Sep.  17,  1729.  D.  to 
pay  note  in  question,  irrespectively  of  said  seizure. 

Petition  of  Recovery.  Sep.  19,  1729.  Claude  Trenaunnay  Chan- 
fret,  director  of  DuBuisson  grant,  seeks  to  collect  a 
protested  draft  for  373  francs  and  15  sous,  plus  in- 
terest and  costs,  from  Mr.  Kolly.  Draft  was  drawn  by 
Mr.  Dumanoir  in  favor  of  C.  T.  C,  in  December  1720 ; 
protested  in  May  1721. 
Action  allowed. 


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Records  of  the  Superior  Council  of  Louisiana  851 

Certificate  on  Rafters.  Sep.  20,  1729.  Mr.  Broutin  certifies 
that  the  rafters  of  Mr.  Tixerant's  plantation  house  are 
too  far  apart,  being  spaced  at  about  three  feet. 

Summons  to  Testify.  Sep.  20,  1729.  Sheriff  Dargaray  notifies 
Le  Houx,  pilot  of  the  St.  Michel  to  appear  before  First 
Councillor  Delachaise  today  at  3  P.  M.  for  hearing  in 
St.  Michel  affair. 

Summons  to  Attend  Hearing.  Sep.  20,  1729.  Sheriff  Dargaray 
notifies  Captain  Lobry  and  retailer  Mahon  of  the  St. 
Michel;  also,  Messrs.  Berthelon,  Voisin,  and  Duma- 
noir,  to  appear  on  Saturday  next,  when  seizure  of  the 
said  ship  is  to  be  declared  correct. 

Summons  to  Attend  Hearing.  Sep.  20,  1729.  Sheriff  Dargaray 
notifies  Messrs.  MarcMahon,  Foliette,  Berthelon,  Du- 
manoir,  and  Voisin  to  appear  "on  Saturday  next,"  with 
reference  to  proceedings  of  seizure  and  confiscation 
in  St.  Michel  affair.   Torn  and  faded. 

Decision  Between  Manade  and  Baschemin.  Sep.  20,  1729.  De- 
fendants, B.  and  wife,  to  pay  M.  and  wife  3000  francs 
with  interest.  Concurrent  seizure  to  be  revoked.  Com- 
municated to  B.  and  wife. 

Petition  to  Recover  Rent.    Sept.  24,  1729.     Raymond  Amyault 
D'Auseville  leased  a  house  to  Madame  de  Ste.  Her- 
\  mine  for  20  francs  a  month  to  continue  one  year.     Ma- 

dame has  removed  her  furniture  and  sent  back  the 
keys,  except  dovecote  key;  the  key  being  handed  by 
Surgeon  Major  Reytet  to  a  raw  "savagess,"  ignorant 
of  French.  Let  Madame  be  cited  to  take  back  the  keys 
and  to  pay  rent  as  agreed. 

Release  From  Official  Action.  Sep.  24, 1729*  Councillor  de  Per- 
rier,  owing  to  his  long  intimacy  with  Mr.  Marc  Mahon, 
cannot  conscientiously  take  part  in  the  pending  pro- 
ceedings against  ship  St.  Michel,  and  is  accordingly 
released  therefrom. 

Signed:  Delachaise,  Prat,  D'Auseville,  Baron. 

Inquiry  Ordered.  Sep.  24,  1729.  Attorney  General  Fleuriau 
moves  for  a  formal  report  on  the  condition  of  the  ship 


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352  The  Louisiana  Historical  Quarterly 

St.  Michel;  thereby  to  ascertain  whether  an  alleged 
leak  is  real,  or  was  produced  purposely,  or  is  meerly 
feigned. 

Decisions  in  Sundry  Suits.  Sep.  24, 1729. 

1.  Claude  Trenaunnay  Chanfret  vs.  Kolly. 

K.  to  pay  note.  C  29138. 

2.  Ren6  Boyer  vs.  Tixerand. 

T.  will  make  desired  improvements  within  a 
year.  Meanwhile  R.  B.  shall  have  the  benefit  of 
ground  which  he  cleared.    T.  to  pay  cash  claim. 

3.  Prat  vs.  Bunel  and  Malon.  Seizure  correct.  Ma- 
lon  to  deliver  cow  and  heifer  in  question,  and  then 
refund  what  is  due. 

4.  Attorney  General  vs.  Lobry,  Mac  Mahon,  Berthe- 
lot,  Voisin,  Coustilhas,  Dumanoir.  Confiscation 
sustained. 

Accessory  provisos  on  behalf  of  Dumanoir  and 
Voisin.     Costs  on  Lobry  and  Mac  Mahon. 

Business  Agreement.  Sept.  25,  1729.  Burbeau  will  receipt  to 
Mr.  Senet  for  1800  francs  after  the  departure  of  the 
Durance.  Some  further  provisos  bearing  on  transac- 
tions of  pertinence  to  themselves  then;  profitless  to 
this  generation. 

Remonstrance  in  Rent  Suit.  Sep.  26,  1729.  Madame  de  Ste. 
Hermine  did  not  understand  a  binding  force  in  con- 
tract of  rent  for  one  year,  but  understooa  herself  free 
to  vacate  at  will  on  paying  to  time  of  retirement.  Mr. 
D'Auseville  refused  80  francs,  the  rent  for  four 
months,  when  she  offered  it  and  had  it  ready;  she 
spent  it  afterwards  on  her  own  account,  and  cannot 
immediately  pay  .the  same  sum  just  now.  Let  Mr. 
D'A.  be  nonsuited,  and  Madame  will  pay  for  the  given 
four  months  when  the  Council  so  orders,  but  at  a  fu- 
ture date.  No  note  by  Court. 

Criminal  Procedure.  Sept.  27,  1729.   Attorney  General  Fleuriau 
moves  for  the  trial  of  a  Bambara  negro  belonging  to 
Mr.  Tredeau,  and  accused  of  persistent  violent  threats. 
Approved:  Delachaise. 


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Records  of  the  Superior  Council  of  Louisiana  353 

Petition  to  Maintain  Exchange  of  Slaves.  Sep.  28,  1729.  An- 
toine  Lowe  exchanged  a  negro  boy  with  Mr.  Alexandre 
for  a  ncgress.  Negro  boy  was  in  good  condition 
then,  but  is  now  in  a  decline  and  liable  to  die.  Mr.  A. 
would  give  back  the  impaired  slave  and  cancel  the 
bargain.  Let  him  be  held  to  his  word. 
Action  allowed. 

Memorandum  of  Account.  Oct.  1,  1729.  Items  chiefly  of  bleed- 
ing.   Total  5  francs. 

Petition  of  Recovery.     Oct  1, 1729.     Louis  Viger  claims  45  francs 
of  Mr.  Bimond,  plus  interest  and  costs. 
Action  allowed. 

Promissory  note.  Oct.  6,  1729.  Quidort  will  pay  Mr.  La  Fre- 
nidre  the  sum  of  297  francs  and  7  sous,  or  order  value 
received,  at  the  close  of  November  next. 

Memorandum  of  Account.     Oct.    8,    1729.     Bimont    presents    a 
conterclaim  in  answer  to  Viger's  claim  of  45  francs. 
Total  of  detailed  items,  61  francs. 
No  note  by  Court. 

Motion  For  Appointment  of  Guardians.  Oct.  8,  1729.  Attorney 
General  Fleuriau  reports  the  drowning  of  Louis  Senet, 
while  on  the  way  to  his  plantation  by  dugout,  on  Sep. 
27,  1729.  There  being  a  widow  (in  France)  and  sur- 
viving minor  children,  a  guardian  and  surrogate  guar- 
dian should  be  appointed. 

Approved  (after  customary  forms) :  Brusle. 
Stained. 

Decision  in  Rent  Suit.  Oct.  8,  1729.  Madame  de  Ste.  Hermine 
is  ordered  to  abide  by  terms  of  a  full  year's  lease.  She 
shall  take  back  the  keys  and  furnish  the  house  in  se- 
curity. 

Costs  on  Madame. 

Notice  served,  and  Madame  protests.  She  will  pay 
four  month's  rent,  but  refuses  the  keys  and  further 
obligations. 

Decisions  in  Sundry  Suits.  Oct.  8,  1729. 

1.     See  29-155. 


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354  The  Louisiana  Historical  Quarterly 

2.  Antoine  Lowre  vs.  Alexandre.     A.  L.  shall  take 

his  negro,  A.  his  negress. 

Fine  on  both  parties  in  favor  of  Hospital. 

Costs  divided. 

3.  Viger  vs.  Bimont.    Out  of  Court.    Costs  divided. 

Proviso  against  V.'s  practice  of  surgery. 

Petition  For  Account  Rendered.    Oct.  11,  1729.       Jean    Rebout 
calls  for  citation  of  Mr.  Bonnaud,  inspector  of  Le 
Blanc  grant,  to  render  his  account  to  J.  R.  and  pay 
what  is  due. 
Action  allowed. 

Letter  of  Terisse  De  Ternan  to  Mr.  Rossard.  Oct.  13, 1729.  Ac- 
knowledging "your  long  and  agreeable  letter  of  past 
June  15."  Reference  to  disorders  in  the  "capital." 
Writer  sends  a  fresh  lot  of  onions.  Discussions  of 
trade  situation ;  items  of  personal  gossip.  Remarks  on 
a  ruling  against  S.  J.  (supposed  unfriendly  to  T.  de  T.) 
Mr.  Pradel  made  fair  promises  which  he  does  not  keep. 
Turn  dugout  over  to  the  Company  and  remove  six 
bearskins  for  blankets.  R.'s  debtor  has  paid  200  Ibsu 
of  flour.     Flour  quoted  at  15  francs  a  cwt. 

Decisions  in  Two  Suits.  Oct.  15,  1729. 

1.  Rebout  vs.  Bonnaud.     B.    to    comply    within    •. 

fortnight.  Costs  on  B. 

2.  Francois vs.  Jacques  Datalon. 

Adjourned. 

Acknowledgment  of  Debt.  Oct.  21,  1729.  Bayou  St.  Jean^ 
Jean  LeBrasse  owes  100  francs  to  La  Croix  for  vic- 
tuals, and  cedes  to  him  a  third  of  site  beginning  with 
two  trees  (kind  npt  known)  and  extending  to  a  cer- 
tain oak. 

Witnessed  by  Clermont  and  Forestier. 

Petition  to  Prosecute.  Oct.  21,  1729.  Bonnaud  reports  that  his 
negro  Crusquet  died  from  poisoning,  as  indicated  by 
postmorten  examination.  Petit,  another  negro  of  B'.s 
is  suspected  of  the  crime,  and  should  be  brought  to 
trial. 

No  note  by  Court. 


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Records  of  the  Superior  Council  of  Louisiana  855, 

Agreement  For  Hire  of  Free  Negroes.  Oct.  21,  1729.  DeCha- 
vannes  agrees  to  hire  free  negro  Mingo,  who  came 
from  Carolina,  and  his  wife  Therere,  whom  M.  bought 
of  Mr.  Dalby,  for  three  years.  M.  to  work  and  also  to 
oversee  slaves  in  cultivation  of  tobacco,  cotton,  and 
other  crops;  Th6r^e  to  engage  in  women's  work. 
Hire  for  M.  shall  be  300  francs  a  year  in  current  funds, 
together  with  a  jug  of  brandy  each  month  when  in 
store;  equivalent  money  else;  besides  8  per  cent  of 
plantation  produce  except  increase  of  negroes  and  cat- 
tle. This  8  per  cent  to  be  realized  promptly  after 
each  harvest;  provided  service  continue  to  close  of 
term.  Hire  for  Ther^se,  200  francs  a  year  payable  to 
Dalby  until  Mingo's  contract  with  him  be  discharged. 
(Soiled  as  though  by  contact  with  a  dusty  floor.) 

Petition  For  Emancipation  of  Indian  Slave.  Oct.  22,  1729.  Du- 
plessis,  settler  at  Natchitoches,  holds  "a  kind  of  will" 
devised  by  late  Francois  Viard,  who  freed  an  Osage 
woman  slave  and  reserved  100  pistoles  in  behalf  of 
her  Catholic  instruction.  Let  these  terms  (and  their 
accessory  clauses)  be  carried  out. 

Attorney  General  approves  emancipation  in 
question,  but  the  Black  Code  forbids  cash  legacy  to  a 
slave.  Money  shall  go  to  the  Hospital,  and  said  Osage 
will  be  trained  by  the  Ursuline  ladies,  who  are  to  take 
quarters  in  Hospital. 

Motion  to  Try  For  Poisoning.  Oct.  25,  1729.  Attorney  General 
.Fleuriau  reviews  the  case  of  Mr.  Bonnaud's  negro, 
Crusquet.  Among  the  plantation  negroeia,  witchcraft 
is  supposed  to  be  the  weapon  of  Crusquet's  poisoner's 
tribe;  the  law  followed  by  Council  does  not  admit 
witchery,  but  it  does  punish  poisoners.  Institute  for- 
mal trial  of  Petit. 

Approved:  Delachaise. 

Surgeon  Manade  and  witnesses  shall  be  cited  before 
Councillor  Prat. 

Partly  perforated  as  by  gnawing. 

Agreement  on  Hire  of  Slaves.  Oct.  27, 1729.  Pierre  de  Manad6 
hires  two  slaves,  Cezard  and  Jupiter,  to  Adrien  Gil- 


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356  The  Louisiana  Historical  Quarterly 

bert,  carpenter,  for  one  year.  Terms,  240  francs  for 
each,  or  total  480  francs;  240  paid  cash;  the  residue 
payable  at  expiration  of  contract.  Provisos  on  death 
and  marooning. 

Contract  attested  by  J.  B.  Facuon  Dumanoir,  4  F. 
1731,  and  by  Vincent.  7  Sept.  1731. 

Receipt..  Nov.  2,  1729.  Pellerin  has  received  of  Mr.  St.  Julien, 
six  Spanish  dollars  in  discharge  of  a  note  of  Mr.  Bo- 
quet's.    Said  note  to  be  destroyed  if  it  be  found. 

Endorsed  memorandum;  six  piastres  paid  for  Bo- 
quet  to  Sieur  Pelerin.    Naquitoche. 

Petition  of  Recovery,     Nov.  8,  1729.     Renaut  D'Auterive  moves 
for  the  citation  of  Surgeon    Alexandre    to    pay    252 
francs,  and  a  further  item  of  100  francs. 
Action  allowed. 

Petition  of  Recovery.     Nov.  8,  1729.     Rebout  claims  240  francs 
from  Mr.  Delery,  for  8  months'  hired  service;  less  40 
francs  for  four  barrels  of  rice,  and  2  francs  for  a  pair 
of  galoshes. 
Action  allowed. 

Petition  of  Recovery.     Nov.  8,  1729.     Rebout  claims  170  francs 
from  Sieur  de  la  Freniere,  for  five  months  and  twenty 
days  of  hired  service;  less  30  francs  received  for  six 
items  of  cheese. 
Action  allowed. 

Petition  to  Recover.  Value  of  Slave.  Nov.  8,  1729.  St.  Amand 
moves  for  the  citation  of  Surgeon  Darclon  Desche,  to 
pay  for  a  negro  who  died,  as  here  contended,  by  reason 
of  the  Surgeon's  neglect.  Case  of  injured  feet,  and 
culpable  abandonment  of  duty. 

Notice  to  said  Surgeon  aux  AUemands,  ten  leagues 
away.     Nov.  12,  1729. 

Decisions  in  Two  Suits.  Nov.  12,  1729. 

1.  Renaud  Dauterive  vs.  Alexandre. 

Further  in  process. 

2.  Rebout  vs.  La  Freniere. 

Settlement  provided. 
Costs  on  defendant. 


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Records  of  the  Superior  Council  of  Louisiana  357 

Petition  to  Evict.     Nov.  14,  1729.     Rivet  sold  a  house  to  one  Du- 
•     perier,  who  returned  to  France  and  left  the  transac- 
tion in  charge  of  one  Sautier,  joiner.     Let  S.  be  cited 
to  vacate  the  said  house,  for  failing  to  satisfy  terms 
of  sale.     He  shall  also  pay  rent  as  due. 
Action  allowed. 

Petition  For  Execution  of  Judgment.  Nov.  14,  1729.  Raymond 
Amyault  D'Auseville  requests  the  Council  to  confirm 
the  ruling  passed  against  Madame  Ste.  Hermine.  The 
vacant  premises  daily  suffer  wanton  depredations,  as 
by  removal  of  stakes  from  fences  and  poultry  house. 
If  Madame  will  not  move  back,  let  other  tenants  be 
installed,  and  Madame  be  held  responsible  for  dam- 
ages.     Notice  served. 

Runaway  Slave  Case.  Nov.  16,  1729.  Examination  of  a  Bam- 
bafa  negro  David,  who  admits  running  away  (from 
his  master  de  Manade)  and  complicity  in  killing  a 
heifer.  Ran  away  because  his  master  broke  a  finger 
for  him  (not  the  master's) . 

Letter  of  Terrisse  De  Tcman  to  Rossard.  Fort  Chartres,  Nov. 
20.  Takes  advantage  to  write  by  coincidence  of  dug- 
out carriers.  Hams  will  be  sent  later,  and  as  oppor- 
'  tunity  best  serves.  Writer  has  broached  some  native 
wine,  still  raw,  but  will  endeavor  to  keep  the  full 
cask  thereof  till  spring.  Epiphany  and  Shrove  Tues- 
day (which  he  spells  marty  eras)  may  tempt  him  to  the 
contrary,  but  he  thinks  of  absenting  himself  so  as  to 
keep  his  word  until  Easter.  R.  will  please"  to  bear  in 
mind  such  trifles  as  sugar  and  coffee,  suitable  reliefs 
in  ascetic  remoteness. 

Petition  of  Recovery.  Nov.  22,  1729.  Surgeon  Major  Jean  de 
Reytet  claims  an  account  of  200  francs  and  a  further 
item  of  50  francs  from  Mr.  Bimond. 

Action  allowed. 

Faded  almost  extinct. 

Petition  of  Recovery.    Nov.  22,  1729.     Mr.    Marian    claims    88 
francs  and  19  sous  from  one  Malon,  due  on  a  note. 
Action  allowed. 


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358  The  Louisiana  Historical  Qitarterly 

Memorandum  of  Account.  Nov.  24,  1729.  Monsieur  de  St.  Ju- 
lien's  account  with  Rossard.  List  of  miscellaneous 
items  and  transactions.    Total  3862  francs. 

Entries  also  occur  for  April  3  and  May  15,  1739. 

Ragged  edges. 

Decisions  in  Sundry  Suits.  Nov.  26,  1729. 

1.  D'Auseville  vs.  Madame  Ste.  Hermine.     Modified 
ruling  for  plaintiff.    Last  portion  effaced. 

2.  St.  Amant  vs.  Darclon  Desche. 

St.  A.  nonsuited. 

3.  Marin  vs.  Malon.     Claim  to  be  paid,  plus  costs. 

4.  Rivet  vs.  Sautier.     Adjourned. 

Petition  of  Recovery.  Dec.  2,  1729.  Jean  Baptiste  Beaupre 
seeks  to  collect  the  sum  of  200  francs  from  Mr.  Ros- 
sard, attorney,  for  certain  supplies  furnished  on  be- 
half of  the  late  Senet,  and  also  for  petitfoner's  time  as 
plantation  steward. 

Action  allowed. 

Duplicated. 

Copy  of  Perier's  (First  Card)  Instructions  to  Sieur  Dusable: 
Natchez  Affairs.  Dec.  9,  1729.  He  shall  get  first- 
hand information  of  what  is  going  on  aux  Natchez,  and 
how  the  French  fare  on  all  the  grants  of  the  White 
land  (Terre  Blanche)  and  Ste.  Catherine,  whither  the 
French  have  fled,  it  would  seem.  When  he  learns  of 
anything  noteworthy,  let  him  write,  or  send  a  mes- 
senger, or  even  come  down  in  person  if  the  news  were 
not  to  be  trusted  to  a  second  party.  Assure  the 
French  and  the  friendly  Indians  that  war  supplies  will 
be  found  along  the  River.  He  shall  accurately  observe 
Indians  of  the  small  tribes  along  the  River,  so  as 
to  ascertain  their  sentiments  and  to  learn  whether 
they  have  been  approached  by  the  other  Indian  tribes. 
(See  next  card). 

(Second  Card).  Petition  of  Dusabl6.  On  the  basis  of  the  fore- 
going commission,  which  he  followed  out  at  risk  of  his 
life,  Mr.  Dusable,  now  of  Natchitoches,  but  in  transit 
at  N.  0.,  asks  the  Council  to  defray  at  least  his  ex- 


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Records  of  the  Superior  Council  of  Louisiana  859 

penses  on  yonder  expedition;  which  also  included  the 
reconnoitering  of  a  road  discovered  by  Officer  St.  Ju- 
lien,  and  purporting  to  be  the  work  of  the  Chaque- 
tas. 

Application  approved :  Salmon. 

Notice  served  by  Sheriff  Louis  Hugault  to  Mr.  Brus- 
le,  representing  Company  of  the  Indies. 

Petition  to  Recover  Bequests..  Dec.  12,  1729.  R.  P.  Raphael 
enumerates  various  "pious  legacies"  devised  to  the 
Capuchin  Community;  to  wit,  150  francs  and  also 
50  francs,  for  the  poor,  by  will  of  late  Desarbois ;  500 
francs,  and  a  debt  of  330  francs,  by  will  of  late 
Sieur  de  La  Salle ;  house  and  lot  in  Bourbon  Street,  by 
will  of  late  Babas.  Execution  besought. 
Notice  served  to  Mr.  Rossard. 

Petition  of  Recovery.    Dec.  20,  1729.    De    Moran    claims    150 
francs  from  one  Augustin  Gouy  de  Nidal,  due  on  a 
note  dated  May  24,  1729. 
Action  allowed. 

Petition  of  Recovery.  Dec.  24,  1729.Guillaume  Bousquet  alias 
Sansfacon  moves  for  the  citation  of  Jean  Coupard  to 
pay  the  sum  of  246  francs  and  15  sous,  still  due  for 
value  received  in  merchandise;  as  appears  by  note  of 
Nov.  15,  1728. 
Action  allowed. 

Petition  to  Recover  Value  of  Slave.  Dec.  24,  1729.  La  Boullaye 
was  allt)tted  a  certain  slave  who  proved  incorrigibly 
lazy,  or  obstinate,  when  set  to  work.  The  said  slave 
has  died,  and  petitioner  seeks  to  obtain  a  slave  in 
compensation,  from  estate  of  the  late  Latour  Pouila- 
don,  owner  of  deceased  slave. 
Action  of  inquiry  allowed. 

Motion  For  Inquiry.  Slave  Suit.  Dec.  29,  1729.  Attorney  Gen- 
eral Fleuriau  relates  the  case  of  an  unprofitable  slave, 
supposed  to  have  been  wittingly  palmed  off  on  Mr.  La 
Boullaye  through  the  late  Surgeon  De  La  Tour's  easy 
knowledge  of  slaves'  fitness  or  unfitness.    Let  execu- 


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360  The  Louisiana  Historical  Quarterly 

tor  of  the  deceased  surgeon's  estate  be  cited,  together 
with  all  persons  likely  to  have  knowledge  of  the  facts 
at  issue. 

No  note  by  Court. 
.    Faded. 

Petition  to  Seize  Assets.  Dec.  30,  1729.  Messrs.  DePerier  and 
Dclachaise  advanced  5000  francs  to  the  late  Mr.  KoUy, 
for  which  he  gave  them  his  note  dated  March  29,  1728. 
Mr.  K.  now  "finds  himself  included  in  the  Natchez 
massacre, '  and  the  petitioners  move  to  secure  their 
loan  by  seizing  a  certain  consignment  which  has  ar- 
rived for  Mr.  K.  by  the  ship  L' Alexandre.  Let  Mr. 
Rossard,  attorney  for  vacant  estates,  be  cited. 

Approved,  and  meanwhile  the  said  consignment  may 
be  seized. 
Brusle. 

Attachment  of  Goods.  Dec.  30,  1729.  In  consequence  of  pro- 
ceedings moved  by  Messrs.  Perrier  and  Delachaise, 
Sheriff  Dargaray  seizes  the  consignment  for  late  Mr. 
KoUy ;  comprising  three  casks  of  wine,  six  quarters  of 
flour,  six  "anchors"  (about  96  gallons)  of  brandy,  and 
a  box  of  groceries.  Mr.  Pellerin,  Company  store- 
keeper, is  notified  to  appear  with  reference  to  sale 
and  award. 

Summons  to  Pay  claim.    Dec.  30,  1729.     Mr.  Rossard,  attorney 
for  vacant  estates,  is  notified  to  appear  on  January  7, 
1730,  to  pay  the  claim  of  Messrs.  Perier  and  Delachaise 
against  Kolly  estate. 
Duplicated. 

Decisions  in  Sundry  Suits.  Dec.  31, 1729. 

1.  Guillaume  Bousquet  vs.  Jean  Coupart.     Claim  al- 
lowed. 

2.  Morand  vs.  Augustin  Gouy  de  Bidal.     Claim  al- 
lowed. 

3.  R.  P.    Raphael    vs.    Rossard.     Adjustments    by 
SCRAWL. 

4.  R.  P.  Raphael  vs.  Rossard.     Further  in  process. 


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CABILDO  ARCHIVES— FRENCH  PERIOD. 

Edited  by  Henry  P.  Dart. 


THE    FIRST   CHARITY    HOSPITAL   FOR   THE    POOR 
OF   NEW   ORLEANS. 

(Supplement   to   No.   VII,  Vol.   3,  No.  4.) 


Transfer  of  Site  of  Hospital  to  Sr.  Raguet  by  Joseph  Villars  Dubreuil  and 
Appraisement   of   Building    Material. 

May  10,  1736.     Joseph  Villars  Dubreuil  Retrocession  to  Ra- 
guet  : 

Before  us,  acting  as  notary  at  New  Orleans  and  the  hereafter 
named  and  undersigned  witnesses,  appeared  Sieur  Joseph  Villars 
Dubreuil,  Contractor  for  His  Majesty's  works,  residing  in  this 
city,  who  has  acknowledged  and  admitted  having  sold,  ceded, 
transferred,  retroceded  and  relinquished,  and  by  these  presents 
does  sell,  cede,  abandon,  transfer,  retrocede  and  relinquish  from 
this  moment  and  forever,  without  any  other  guarantee  than  the 
facts  and  promises  only  to  Sr.  Raguet,  Councillor  in  the  Superior 
Council  of  Louisiana,  in  the  name  of  and  as  testamentary  execu- 
tor of  deceased  Jean  Louis,  whilst  living  a  resident  of  this  city 
and  first  founder  and  benefactor  of  the  establishment  of  a  hos- 
pital for  the  poor  and  sick  of  this  city,  said  Raguet  being  present 
accepting  for  himself  as  well  as  for  those  who  will  succeed  him 
in  the  inspection  and  administration  of  the  hospital  in  question, 
and  this  in  conformity  with  the  deliberations  held  relative  to  a 
site  situated  in  this  city,  measuring  twenty  fathoms  frontage  by 
forty  in  depth ;  on  which  there  is  a  house  of  about  fifty  feet  in 
length  by  twenty-two  in  width,  built  on  the  ground,  of  timber 
and  surrounded  by  planks,  (weather  boarded?),  with  a  kitchen 
of  twenty  feet  encased  in  the  same  manner,  with  a  chicken  house 
and  other  commodities,  circumstances  and  dependences  of  the 
said  lot,  which  he  purchased  from  the  Ste.  Reine  Concession,  by 
judicial  adjudication  made  to  him  on  the  twenty  second  of  last 
October,  for  the  sum  of  twelve  hundred  and  fifty  livres  with  costs 
of  court  therein  included,  which  he  paid  cash  at  the  time  to  Sr. 
Raguet,  attorney  for  the  Widow  Kolly  proprietress  of  the  said 
Concession  Ste.  Reine,  which  said  sum  has  presently  been  re- 
mitted and  paid  to  him  by  said  Sr.  Raguet,  for  which  he  acquits 
and  discharges  him.     He  has  also  paid  to  him  a  sum  of  two 


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362  The  Louisiana  Historical  Quarterly 

thousand  one  hundred  and  eighty  livres  for  all  furnishings,  la- 
bor and  repairs  which  he  made  on  the  said  house  and  its  depen- 
dences, according  to  the  estimate  and  memoir  on  the  other  part 
and  transferred  here  as  per  agreement  between  the  said  pur- 
chaser and  the  said  vendor  and  the  R.  F.  Philipe,  Vicar  General 
and  Cure  of  this  city,  by  means  of  which  payments  of  the  prin- 
cipal as  well  as  of  the  repairs  heretofore  mentioned  and  of  the 
said  lots,  houses,  circumstances  and  dependences  which  are  here- 
after to  serve  as  a  hospital  for  the  poor  and  sick  inhabitants  of 
Louisiana,  which  shall  bo  for  and  belong  to  the  said  hospital  in 
full  ownership,  the  vendor  making  full  cession  and  transfer  in  the 
best  possible  form,  without  he  or  his  successors  being  able  to 
claim  nor  pretend  to  anything  thereof,  as  he  has  presently  re- 
mitted into  the  hands  of  the  said  purchaser  all  the  titles  to  the 
property  which  were  remitted  to  him,  of  all  of  which  he 
is  satisfied,  for  thus  has  it  been  agreed  and  settled  between 
the  said  appearers,  promising,  obligating,  renouncing  in  good 
faith  and  done  and  passed  at  New  Orleans,  on  the  tenth  of  May, 
one  thousand  seven  hundred  and  thirty-six,  in  the  presence  of 
Srs.  Pierre  Dreux  and  Alexandre  Portier,  hereafter  mentioned 
witnesses,  the  said  parties  and  me,  notary  here  residing. 

Signed:  'Raguet,"  "Du  Breuil,"  "Portier,"  (paraph)  "Dreu^" 
(paraph  of. )  "Henry  Clerk",  (paraph)  "R.  P.  Philipe." 

Statement  of  appraisement  of  the  necessary  work  to  be  done  on 
the  Charity  Hospital  of  this  City,  agreed  on  with  M.  Dubreuil,  con- 
tractor for  His  Majesty's  work,  according  to  price  and  agree- 
ment with  M.  Raguet,  inspector  and  administrator  of  the  said 
hospital. 

Firstly,  for  rafters  of  new  wood  throughout  the  building, 
length  and  width ; 

To  change  thirty  posts  to  new  ones 'of  C5T)ress  in  good  condi- 
tion ;  300L. 

To  make  foundations  of  bricks,  two  and  a  half  feet  in  height 
by  two  feet  in  breadth,  length  and  width ;  at  300L.  for  pavement 
in  brick  squares  and  to  repair  the  chimneys,  at  50L. 

For  roof  of  new  shingles,  work,  furnishings,  nails  and  lathes, 
at  300  L. 

For  the  same  repairs  to  he  made  to  the  kitchen  with  a  new 
chimney  and  oven,  the  whole  in  good  condition;  at  300L. 


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Cabildo  Archives — French  Period  363 

To  fence  in  the  lot  with  new  stakes,  ten  feet  high,  when  set  and 
lathes  in  place,  furnishing  the  necessary  nails  for  the  lathes; 
at  250  L. 

For  furnishing  the  nails  to  be  used  for  the  fence  and  to  repair 
the  main  house,  the  kitchen  and  its  roof,  one  hundred  livres; 
100  L. 

For  all  the  joiner's  work,  viz. :  repairing  the  doors  and  shut- 
ters, naaking  six  new  doors,  with  two  sides,  including  those  of 
the  garden,  of  the  yard  and  the  stairway  with  planks  and  nails 
therefor;  at  1700L. 

Further,  for  locks  for  said  doors  and  two  iron  supports  to  the 
yard  and  garden  doors,  three  locks  and  three  latches ;  at  120L. 

Further,  for  repairing  the  chicken  house  and  to  partly  cover 
it  with  bark  and  to  surround  it  with  planks,  and  all  necessary 
furnishings;  at  100  L. 

To  mend  and  clear  the  garden,  to  dig  it  up  and  to  plant 
vegetables  and  level  the  yard ; ;  at  80  L. 

Further,  to  make  a  brick  way  the  whole  length  of  the  lot, 
five  feet  in  width  and  to  make  the  drainage  around  the  lot;  at 
60  L. 

Total,  two  thousand  one  hundred  and  eighty  livre  (2,180  L.) 

Done  and  agreed  at  New  Orleans,  on  the  fifth  of  May,  one 
thousand  seven  hundred  and  thirty-six. 

The  original  signed :  "Dubreuil  and  Raguet." 

VILLARS  DUBREUIL  RETROCESSION  A  RAGUET. 

Pardevant  Nous  faisant  fonction  de  Notaire  ala  Nouvelle 
Orleans  et  les  t6moins  cy  apres  Nomm6s  sous  fut  present  Sieur 
Joseph  Villars  Dubreuil  Entrepreneur  des  travaux  de  Sa  Majeste 
demt  en  Cette  Ville,  Lequel  a  Recennu  et  Confess^  avoid  Vendu 
c6de  transports,  Retroc6de  et  d61aiss6,  et  par  ces  presentes  Vend, 
cede,  quitte,  transporte,  Retrocede  et  delaisse  des  maintenant 
pour  toujours  et  a  jamais  sans  aucune  guarantye  que  de  ses 
faits  et  promesses  seulement  au  Sr.  Raguet  Conr  au  Con  Super- 
ieur  de  la  oLuisianne  au  Nom  et  Comme  Executeur  testare  de 
deffunt  Jean  Louis  habt  de  cette  Ville  et  premier  fondateur  et 
bienfaiteur  des  pauvres  et  malades  de  cette  colonie,  pour  TEtab- 
lissement  D'un  hopital  Led  Sr.  aRguet  demt  en  cette  ville  et  cy 


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364  The  Louisiana  Historical  Quarterly 

present  et  acceptant  tant  pour  Luy  que  pour  ceux  qui  Luy  suc- 
cederont  Dans  Linspection  et  Ladministration  de  Lhopital  en 
question  et  ce  conforme  a  la  deliberation  pass6e  au  sujet  d'un 
Emplacement  Situee  en  Cette  Ville  de  Vingt  toises  de  front  sur 
quarante  de  profondeur,  et  sur  leql  il  y  a  une  Maison  batie  dessus 
d'Environ  Cinqte  pieds  de  long  sur  Vingt  deux  de  Large,  Batie 
sur  soUe  En  Bois  de  charpante  Et  Entouree  de  planches,  En- 
semble Une  Cuisine  de  Vingt  piedis  en  quasse  de  meme  facon 
avec  poulailler  et  autres  Commodites  Circonstances  et  depen- 
dances  dudt  terrain,  leql  il  a  acquis  de  la  Concession  Ste  Reine 
suivant  Lad  judication  Judiciaire  qui  Luy  en  a  Este  faitte     le 

Vingt  Deux  Oct dernier,   pour  la  somme  de  Douze  Cent 

Cinqte  Livres  en  Ce  y  Compris  les  frais  de  Justice  quil  paya 
Comptant  alors  au  Sr.  Raguet  procureur  de  Made,  la  Vve.  Kelly 
proprietaire  de  lad.  Concession  Ste  Reine  Laquelle  ditte  somme 
luy  a  presentemt  Este  Remise  et  paye  en  Especes  par  led  Sr. 
Raguet  dont  il  len  quitte  et  dessarge  Comme  aussy  il  luy  a  pay6 
la  somme  de  deux  mil  cent  quatre  vingts  livres  pour  touttes  les 
fournitures,  travaux  et  Reparations  quil  a  fait  a  lade  Maison  et 
ses  dependances  suivant  le  devis  et  Memoire  De  lautre  part  et 
transporte  cy  dessus  ainsi  que  ledt  acquereur  en  Estant  Con- 
venu  avec  led  Sr.  Vendeur  et  le  R.  P.  philipe  Vicaire  glial  et 
Cure  de  Cette  Ville,  au  moyen  desquels  paymts  tant  du  fond 
principal  que  des  reparations  cy  devant  Expliques  et  Lesd  ter 
rains  maisons  circonstances  et  dependances  qui  doivent  servir 
dorenavant  d'hopital  pour  les  paubres  et  habitans  malades  de  la 
Louisianne  seront  et  appartiehdront  en  toute  propriete  aud  ho- 
pital  le  vendeur  en  f  aisant  toute  cession  et  transport  en  meilleur% 
forme  qui  se  puisse  estre,  sans  que  luy  ny  ses  successeurs  en 
puisse  rien  R^clamar  Ny  pretendre  Comme  aussi  il  a  presmt  Re« 
mis  qui  Luy  auroient  Estes  Remis,  dont  il  se  tient  pour  Content 
car  ainsy  a  Este  Convenu  Et  arrete  Entre  les  foy  Et  a  fait  Et 
pass6  a  la  Nouvelle  Orleans  le  Dixe  may  mil  sept  Cent  trente  six 
en  presence  des  Srs.  Pierre  Dreux  Et  Alexandre  portier  temoins 
sousds  demt  les  d  partyes  et  Nous  Notaire. 

Raguet  Du  Breuil  Portier  Dreux, 

Henry  <paraphe)  gffr  Nre. 


1     Soussignes — Word  omitted  in  text  and  supplied. 


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Cabildo  Archives^— French  Period  866 

Devis  Estimatif  des  ouvrages  quil  est  necessaire  de  faire  a 
Ihopital  de  la  Charite  de  cette  ville  Convenues  avec  Mr.  Du  Breuil 
Entrepreneur  des  travaux  du  Roy  suivant  le  prix  ez  apres  areste 
avec  Mr.  aRguet  Inspecteur  et  odministrateur  dud  hopital. 

Premierement  pour  solaive  en  bois  neuf  le  Batiment  d'un 
bout  a  lautre  longueur  et  largeur. 

Et  changer  de  trente  poteau  neuf  tout  de  bois  de  sipre  bien 
conditionnes  cy  300  Iv. 

Pour  faire  les  fondemens  de  briques  de  deux  pieds  et  demi 
de  haut  sur  deux  depresseur  longueur  et  largeur  cy  300  Iv. 

Pour  le  pave  en  Careau  de  brique  et  racomod6  les  Cheminfies 
cy  50  Iv. 

Pour  la  Couverture  en  Bardeaux  tout  neuf  facon  f ourniture 
Cloud  et  lattes,  300  Iv. 

Pour  les  meme  reparations  a  faire  a  la  Cuisine  avec  une  Che- 
minee  neuve  et  un  four  le  tout  bien  Conditions  cy  300  Iv. 

Pour  entourer  le  terrain  de  pieux  neuf  de  dix  Pieds  de  hau- 
teur poses  et  lattes  en  place  avec  f  ourniture  des  Clouds  necessaire 
pour  les  lattes,  250  Iv. 

Pour  fourniture  des  Clouds  qui  doivent  entrer  a  lentourage 
et  a  raccomoder  la  grand  maison  la  Cuisine  et  Couvertune  d'i- 
cele  Cent'Livres  cy  Pour  toute  la  menuiserie  Scavoir  Raccamo- 
der  les  porteset  les  Contrevens  faire  six  Portes  neufs  a  deux 
Battants  cy  compris  Celles  du  jardin  de  la  Cour  et  de  Lescalier 
avec  planches  et  Clouds  cy,  120  Iv. 

Plus  pour  la  ferrure  desd  Portes  avec  deux  valleta  de  fer 
au  porte  de  Cour  et  Jardin,  trois  serrures  et  trois  Locquets  cj 
120  Iv. 

Plus  pour  Raccomoder  le  poulailler  le  recouvrir  d'Ecosse  en 
partie  et  Tentourer  de  planche  fourniture  de  totut  ce  quil  faut 
cy  100  Iv. 

Plus  pour  Raccomeder  et  def richer  le  jardin  le  piocher  et  le 
faire  planter  de  Legume  et  aplanir  li^  Cour  cy  80  Iv. 

Plus  pour  faire  un  Chemin  pave  de  Brique  la  lonqueur  du  ter- 
rain Cinq  Pieds  sde  Large  Et  faire  les  Ecoulemens  alentour  du 
terrain  cy  601v. 

Total  deu  mil  cent  quatre  Vingts  Livres  2189  Iv. 

Fait  et  arreste  a  la  Nouvelle  Orleans  le  Cinquieme  May  mil 
•  sept  Cent  trent  six  sign6  a  lorginal,  Dubreuil,  Et  Raguet. 


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866  The  Louisiana  Historical  Qtuirterly 

EMANCIPATION   OF   MARIE  ARAM,  A  SLAVE. 

(Supplement  to  No.  Vl,  Vol.  3.  No.  4,  p.  551.) 
July  15,  1737.  Fo.  7   (2102) 

Contract  of  Tiocou  with  Director  of  Hospital, 

Translation. 

Before  the  Notary  Royal  of  Louisiana  and  the  hereafter 
named  and  undersigned  witnesses,  appeared  Francois  Tiocou,  a 
free  negro  of  the  Senegal  nation,  residing  in  New  Orleans,  who, 
wishing  to  procure  liberty  for  Marie  Aram,  his  wife,  a  negress 
slave,  has  voluntarily  acknowledged  and  .admitted  that  he  has  en- 
gaged himself,  and  in  fact  engages  himself,  by  these  presents, 
with  M.  Raguet,  Director  of  the  charity  hospital  called  the  St. 
John,  situated  in  this  city,  and  with  Rev.  F.  iPhilipped,  Capuchin 
priest  and  Cure  of  the  said  place.  Assistant  Vicar  General  of  His 
Grace  of  Kebecq  (Quebec),  here  present,  accepting  for  the  said 
hospital  that  the  said  Tiocou  work  and  exert  himself  for  it  and  do 
all  that  he  may  be  ordered  and  commanded  to  do  at  the  said  hos- 
pital for  the  service  of  the  poor  and  sick  who  are  now  there  and 
who  may  be  there  in  the  future,  during  the  six  coming  and  con- 
secutive years,  beginning  on  the  first  of  January  of  the  coming 
year^  besides  the  remainder  of  the  present  year,  during  which 
time  he  will  work  at  the  said  hospital  without  any  remuneration 
whatever,  being  fed  with  provisions  of  the  country  and  supported 
as  the  Inspector  wills,  at  the  completion  of  which  time,  as  a  reward 
for  his  work,  the  said  Sr.  Raguet  and  R.  F.  Philipe  shall  give 
and  remit  liberty  to  one  Marie  Aram,  negress  slave  of  the  said 
hospital,  wife  of  the  said  Tiocou,  who  shall  be  and  shall  remain 
a  free  subject  of  His  Majesty,  to  have  and  to  hold  now  and  for- 
ever, without  any  one  whomsoever  being  able  to  disturb  her,  and 
said  Marie  Aram  will  be  considered  as  the  other  legitimate  wives 
married  to  the  subjects  of  the  King.  It  has  also  been  agreed  that 
if  the  said  Tiocou  should  leave  before  the  six  years  have  expired, 
he  could  claim  nothing  whatever  as  salary,  for  it  has  thus  been 
agreed  between  the  parties,  each  in  good  faith,  promising,  obli- 
gating, etc.,  renouncing  all  that  is  contrary  to  this.  Done  and 
passed  in  New  Orleans,  July  12th,  before  noon,  in  notary's  office. 


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Cabildo  Archives — French  Period  367 

in  the  year  one  thousand  seven  hundred  and  thirty-seven,  in  the 
presence  of  Louis  Hugault  and  Pierre  Piquery,  witnesses  resid- 
ing at  said  place,  and  as  to  said  Tiocou,  he  has  declared  that  he 
does  not  know  how  to  write  nor  sign,  whereon  inquiries  as  per 
ordinance. 

Signed:  "Fr  philippe.  Cap.  priest.  Missy".  "Raguet". 

"Piquery*'.  "Hugault"  (paraph). 

"Henry  ntry"  (paraph). 

Pierre  Piquery  was  the  King's  baker. 

Hugault,  was  for  a  time  clerk  of  the  Superior  Council. 


Original  Text: 


Pardevant  Le  Notaire  Royal  ala  Louisianne  Et  Les  temoins 
cy  bas  Nomm6s  et  soubsign6s  f  ut  present  f  rancois  tiocou  Negre 
Libre  de  Nation  Senegal  demt  ala  Nouvelle  Orleans  Lequel  vou- 
lant  procurer  la  Libert^  de  Marie  Aram  so  fanmie  Negresse  Es- 
clave,  a  Volontairement  Reconnu  Et  Confess^  a  Estre  Engage, 
Comme  de  fait  il  sEngage;  par  lesd  pr6sentes,  avec  Mr  Raguet 
Con''  au  Con®*  Supr  d  ela  Louisianne,  au  Nom  et  Comme  Inspec- 
teur  de  Lhopital  de  la  charity  apelle  le  St  Jean  scitu6  en  cette  Ville, 
et  avec  le  R.  Philiped  prestre  Capucin  Cure  dud  Lieu,  et  provi- 
caire  general  de  Mngr  de  Kebecq  a  ce  present  et  acceptant  pour 
led  hopital  pour  par  Led  tiocou,  travailler  Et  agir  et  f aire  tout  ce 
<iui  Luy  Sera  ordonn6  et  Commande  pour  ledt  et  le  service  des 
pauvres  et  malades  qui  y  sont  et  Seront  a  Lavenir  et  cependant 
fLespace  de  six  annees  prochaines  et  Consecutives  sans  disconti- 
nuation a  commencer  du  premier  Janvier  de  Lann'e  prochaine 
outre  Le  Restant  de  la  presente,  quil  travaillera  audt  hopital.  Sans 
aucune  Retribution  pendant  Leql  temps  II  sera  Nourry  aux 
Vuivres  du  pays  et  Entretenu  ala  Volonte  dud  Sr  Inspecteur,  au 
bout  Duquel  temps,  et  pour  Recompense  desd  travaux  dud  tiocou 
Led  Sr  Raguet  et  R  P  philipe  aud  nom  Luy  donneront  et  Remet- 
tront  La  Nomm^e  marie  aram  Negresse  Esclave  dud  hopital,  et 
femme  dud  tiocou,  Laquelle  sera  et  demeurera  Libre,  et  sujet  de 
sa  majeste  pour  Lavoir  et  garder  a  tou jours  et  a  Jamais  sans  que 
qui  que  sait  puisse  Liquieter,  Laquelle  marie  aram  sera  Regardee 
Comme  les  autres  femmes  Legitimes  marines  aux  sujets  du  Roy, 


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368  The  Louisiana  Histcfrical  ^tiarterly 

a  Este  aussy  Convenu  que  si  led  tiocou  Voiiloit  quitter  avant  lesd 
six  anriees  Expirees  II  ne  pourroit  Kien  Exiger  d'aucune  facon 
po\ir  ses  sialaires,  car  siinsy  a  Este  Convenu  Entre  les  parties 
promettant  chacuri  En  foy,  bbligent,  &6,  Renoncant  a  toutes 
choses  a  ce  Contraire  fait  et  passe  ala  Nouvelle  Orleans,  Le  douze 
Juillet  avant  midy  Etude  du  Notaire,  Lan  mil  sept  cent  trente 
sept,  en.  presence  de  Louis  hugault  et  pierre  piquery  temoins  demt 
aiid  Lieu  pour  et  alegard  dud  tiocou,  a  declare  Ne  scavoir  Ecrire 
Ny  signer  de  ce  Enquis  Suivant  Lord^® 

Fr  Philippe  pre  Cap  Misse  Raguet 

PIQUERY"  Hugault  (paraph). 

Henry  ntry  (paraphe) 


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LOUISIANA  CONFEDERATE  MIUTARY  RECORDS 


By  A.  B.  Booth,  Commissioner  Military  Records. 


It  is  reasonably  certain,  that  there  is  not  extant  a  complete 
and  perfect  record  of  the  Individual  Members  of  any  Louisiana 
Confederate  States  Army  Command. 

The  nearest  approach  to  such  a  Record  is  to  be  found  in  the 
Records  in  the  office  of  the  Commissioner  of  Louisiana  Military 
Records  of  such  organizations,  as  served  in  the  Army  of  North- 
ern Virginia,  where  the  discipline  was  perchance,  best  and  where 
the  muster  rolls  and  reports  were  more  promptly  and  regularly 
made. 

These  records  do,  however,  furnish  many  thousand  proofs  of 
Individual  Soldiers,  complete  and  perfect,  in  establishing  their  de- 
voted service  to  their  country  to. the  end  of  the  strife. 

Patriotic  men  who  were  either  killed  in  battle,  died  in  camp> 
or  in  hospital,  languished  in  Northern  prisons,  until  after  the 
fall  of  the  Confederacy,  or  were  duly  present  and  paroled,  at  the 
final  surrender  of  the  Confederate  States  armies. 

It  is  a  lamentable  fact,  however,  that  a  very  large  number, 
many  of  whom  had  served  with  honorkble  records,  to  within  a 
short  time  of  the  close  of  the  war,  were  absent  without  leave,  at 
the  final  surrender  of  their  respective  commands,  and,  therefore, 
were  not  included  in  the  rolls  of  those  actually  surrendered  and 
paroled :  their  orderly  sergeants  very  properly  not  reporting  them 
for  parole. 

They  are  themselves  to  blame,  not  the  Parole  Records,  for 
their  not  being  in  the  Parole  Lists,  with  their  former  comrades  in 
arms. 

And  the  plight  of  such  as  these,  as  were  in  the  Trans-Missis- 
sippi Department  is  aggravated  by  the  fact,  that  at  the  surrender 
of  General  E.  Kirby  Smith,  May  26th,  1865,  it  is  said  the  Confed- 
erate Records,  including  the  Muster  Rolls,  were  burned  at  Shreve- 
port,  La.,  so  that  there  were  no  Records  left  to  even  show  their 
service  up  to  near  the  time  of  final  surrender. 


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370  The  Louisiana  Historical  Quarterly 

Thus  the  whole  burden  of  proof  is  thrown  upon  these  ab- 
sentees. This  condition  of  absenteeism  is  fully  established  by 
many  Official  Records  and  papers,  not  only  for  the  Louisiana  Sol- 
diers in  the  West,  but  also  for  those  in  other  sections  of  the  South. 

Papers  such  as  those  which  I  will  quote  will  show  this  deplor- 
able state  of  affairs,  a  condition,  which  gives  additional  lustre  to 
the  devoted  service  of  those  noble  men,  whose  devotion  to  duty 
and  to  country,  nerved  them  to  stand  the  final  test  of  soldierly 
honors,  and  while  their  comrades  were  deserting  from  duty,  and 
from  them  could  yet  stand  firm  and  not  lay  down  their  arms,  un- 
til they  could  do  so  honorably  and  deserving  the  parole,  which  is 
their  certificate  of  loyalty,  faithfulness,  devotion  to  country,  and 
to  their  enlistment  oath. 

These  conditions  are  described  by  officers  in  command,  some 
of  whom  I  quote  below,  especially  to  show  conditions  in  the  Trans- 
Mississippi  Department  as  follows : 

Headquarters  Trans-Mississippi  Dept. 

Shreveport,  La.,  April  21st,  1865. 
Soldiers  of  the  Trans-Mississippi  Army : 

The  crisis  of  our  revolution  is  at  hand.  Great  disasters  have 
overtaken  us.  The  Army  of  Northern  Virginia  and  our  Com- 
mander-in-Chief are  prisoners  of  war.  With  you  rests  the  hopes 
of  our  Nation,  and  upon  your  action  depends  the  fate  of  our  peo- 
ple. I  appeal  to  you  in  the  name  of  the  cause  you  have  so  heroic- 
ally maintained — in  the  name  of  your  firesides  and  families  so 
dear  to  you — in  the  name  of  your  bleeding  country,  whose  future 
is  in  your  hands.  Show  that  you  are  worthy  of  your  position  in 
history.  Prove  to  the  world  that  your  hearts  have  not  failed  in 
the  hour  of  disaster,  and  that  at  the  last  moment  you  will  sustain 
the  holy  cause,  which  has  been  so  gloriously  battled  for  by  your 
brethren  east  of  the  Mississippi. 

You  possess  the  means  of  long  resisting  invasion.  You  have 
hopes  of  succor  from  abroad — protract  the  struggle  and  you  will 
surely  receive  the  aid  of  nations,  who  already  deeply  sympfithize 
with  you. 

Stand  by  your  colors — ^maintain  your  discipline.  The  great 
resources  of  this  Department — its  vast  extent,  the  numbers — ^the 
discipline,  and  the  efficiency  of  this  army  will  secure  to  our  coun- 
try terms,  that  a  proud  people  can  with  honor  accept,  and  may 


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Louisiana  Confederate  Military  Records  371 

under  the  Providence  of  God,  be  the  means  of  checking  the  tri- 
umph of  our  enemy  and  securing  the  final  success  of  our  cause. 

E.  KiRBY  Smith, 

General. 

Houston,  April  29th,  1865. 
Brig.  Gen.  W.  R.  Boggs, 

Chief  of  Staff,  Shreveport. 
I  must  have  some  reliable  Cavalry ;  the  little  I  have  is  scat- 
tered all  over  the  state.    Walker  ought  to  be  under  my  command. 
We  must  have  unity.    The  men  are  deserting  by  tens  and  twenties 
a  night . 

J.  B.  Magbudeb, 
Major  General  Commanding. 

Headquarters  Forces  Front  Lines, 

May  11,  1865. 
Col.  R.  L.  Capers, 

Commanding  Fifth  Louisiana  Cavalry: 
Colonel:  You  will  express  my  commendation  and  approval 
to  the  men  of  your  regiment  who  have  remained  true  to  their  col- 
ors, notwithstanding  the  force  of  example  and  temptation.  The 
circumstances  that  surround  us  are  peculiar,  and  we  should  act 
with  that  patriotism  that  has  ever  distinguished  the  soldier.  The 
interest  of  the  private  and  the  officer  is  identical,  for  the  power 
that  is  vested  in  the  one  arises  only  from  the  representation  and 
obedience  of  the  other.  What  particular  object  those  unfortunate 
men,  who  secretly  left  their  companions  oni  the  night  of  the  9th 
instant  may  have  expected  to  accomplish  is  difficult  to  imagine. 
By  this  one  step  they  lose  the  results  of  their  long  endurance  and 
sacrifice,  the  reputation  that  they  have  won.  I  have  no  desire  to 
force  men  against  their  wishes  to  struggle  for  their  own  freedom, 
and  under  no  circumstances  would*  I  wish  to  lead  into  battle  any 
tody  of  men  who  desire  to  abandon  the  cause  for  which  we  have 
taken  up  arms.  There  is  a  time  for  all  things,  and  men  should  not 
unduly  precipitate  their  action.  I  have  no  doubt  but  that  oppor- 
tunities will  be  frankly  offered  for  men  to  select  their  own  course ; 
and  that  no  unreasonable  violence  will  be  exhibited  by  our  supe- 
rior officers,  who  have  attested  by  the  common  perils  that  they 
have  freely  shared  with  us  their  devotion  to  the  common  weal. 
But  the  present  is  not  the  time  for  men  to  act.    Intrusted  with  the 


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duty  of  the  front,  sacred  responsibilities  toward  our  comrades  in 
arms  require  us  to  be  vigilant  and  faithful ;  and  even  those  who 
have  or  may  determine  to  abandon  the  contest  and  go  home  will, 
if  they  desire  to  do  so,  have  ample  opportunities  to  execute  their 
purposes,  when,  even  if  we  had  the  desire,  we  would  not  have  the 
power  to  retain  them.  How.  sad  would  be  the  spectacle  of  Louisi- 
anians  turning  upon  each  other  those  arms  which  they  took  up 
against  a  common  foe,  whose  triumph  this  fraternal  contest  would 
consecrate.  We  have  stood  togethei;  in  many  trying  scenes,  and 
if  we  must  part  let  us  not  part  as  enemies,  but  as  brothers,  dealing 
openly  and  frankly  with  each  other,  not  going  away  from  each 
other  in  the  night  as  if  we  knew  some  wrong  was  being  committed 
towards  those  who  re^main.  Then  while  we  remain  together  let  us 
cherish  toward  each  other  the  same  confidence  that  has  ever  ex- 
isted ;  and  I  trust  that  it  is  not  necessary  for  me  to  say  that  the 
men  will  find  in  me  one  who  sjrmpathizes  with  their  many  suffer- 
ings and  who  has  no  disposition  to  exercise  his  authority  for  the 
purpose  of  oppression.  In  the  short  period  your  men  have  been 
attached  to  my  command  I  have  been  pleased  with  thqm  and  grat- 
ified at  their  hearing ;  and  I  am  confident  if  those  men  who  left  us 
the  other  night  had  come  and  conversed  frankly  with  rae  they 
would  now  have  remained,  cheerful  and  contented  with  those  now 
present  with  the  regiment  who  have  thus  preserved  their  honor 
untarnished  to  the  end. 

I  am.  Colonel,  yours  respectfully, 

J.  L.  BrExNT. 
Brigadier-General  Commanding. 

Headquarters  Forces  Front  Lines, 

Alexandria,  La.,  May  13th,  1865. 

Colonel  R.  L.  Capers, 

(Through  Col.  W.  G.  Vincent, 

Commanding  Brigade,  etc. 
.  Colonel :  I  regret  to  learn  the  sad  demoralization  of  your 
command,  but  I  take  pleasure  in  expressing  to  you  my  conviction, 
that  you  have  done  all  in  your  power  to  check  it.  I  wish  you  to 
proceed  with  the  debris  of  your  Regiment  to  Mansfield  to  report 
to  Brigadier-General  Bagby.  If  you  can  cross  Cane  River  at  Mo- 
nett's  Ferry,  you  will  proceed  via  Natchitoches.  If  not,  you  can 
turn  off  to  the  right  and  go  by  Beasley's,  Bellwood,  Fort  Jessup 


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and  Pleasant  Hill.  If  on  reaching  Beasley's,  you  deem  it  advisable 
for  supplies  to  march  via  Natchitoches  you  can  do  so,  but  this  will 
be  near  fifteen  miles  out  of  your  way.  You  can  get  meal  early  to- 
morrow morning  at  Boyce^s  Mill,  and  this  evening  you  may  move 
your  Regiment  to  that  vicinity,  sending  an  officer  to  Monett's 
Ferry  to  meet  you  on  your  march  tomorrow  with  the  information 
relative  to  the  crossing.  I  wish  you  to  move  with  what  you  can 
carry,  as  rapidly  as  possible.  Express  my  admiration  to  the  offi- 
cers and  men  of  Company  E  at  their  conduct. 

Respectfully, 

J.  L.  Brent, 

Brigadier-General  Commanding. 

,  Houston,  May  16th,  1865. 
General  E.  Kir]by  Smith, 

Commanding  Trans-Mississippi  Dept.,  Shreveport,  La. 
General:  Major-General  Walker  refuses  to  give  up  the  com- 
mand for  the  present  to  Brigadier-General  Bee,  though  he  was  in- 
formed that  the  order  came  from  Department  Headquarters.  I 
wish  De  Bray's  Regt.  ordered  to  Harrisburg.  A  portion  of  the 
garrison  at  Galveston  mutinied  on  Sunday.  This  arrangement 
will  probably  prevent  another  mutiny  and  sayp  Houston.  It  is  a 
burning  injustice  to  me  to  deprive  me  of  the  command  of  the  cav- 
alry under  these  trying  circumstances. 

J.  B.  Magruder, 
Major  General  Commanding. 

Houston,  May  16th,  1865. 
General  E.  Kirby  Smith, 

Commanding  Trans-Mississippi  Dept.,  Shreveport,  La. 
General:  On  the  night  of  the  14th  inst.  from  most  reliable 
information,  that  can  be  obtained  some  400  of  the  troops  at- 
tempted to  desert  the  post  of  Galveston.  Colonel  Smith  by  prompt 
action  supported  by  Colonel  Timmons'  and  Colonel  Hobby's  Regi- 
ments arrested  their  advance  and  restored  quiet.  I  learn  from 
Major-General  Maxey,  that,  notwithstanding  all  his  efforts,  he 
cannot  produce  such  a  state  of  feeling  in  his  division,  as  will  jus- 
tify him  in  depending  upon  their  resisting.  I  have  seen  letters 
from  intelligent  officers  in  Walker's  Infantry  Division,  who  state 
that  those  troops  will  fight  no  longer.  I  have  sent  for  Gen.  Walk- 
er, and  he  will  be  here  today ;  will  add  what  he  may  say  after  I  see 


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him.  The  officers  and  men  insist  upon  dividing  the  property  be- 
fore the  surrender,  and  I  think  it  ought  to  be  done,  as  I  have  tele- 
graphed you.  I  have  exerted  myself  more  than  1  ever  did  to  instill 
a  spirit  of  resistance  into  the  men,  but  in  vain.  I  but  make  myself 
antagonistic  to  the  Army  and  an  object  of  their  displeasure.  Noth- 
ing more  can  be  done  except  to  satisfy  the  soldiers,  to  induce  them 
to  preserve  their  organization,  and  to  send  them  in  Regiments, 
etc..  to  their  homes  with  as  little  damage  to  the  community  as  pos- 
sible.   For  God's  sake  act  or  let  me  act. 

J.  B.  Magbuder, 
Major  General  Commanding. 
P.  S. — I  entirely  concur  in  the  foregoing.  I  will  say  in  addi- 
tion that  my  observation  convinces  me,  that  the  troops  of  this  dis- 
trict cannot  be  relied  upon.  They  consider  the  contest  a  hopeless 
one,  and  will  lay  down  their  arms  at  the  first  appearance  of  the 
enemy.  This  is  the  unanimous  opinion  of  the  Brigade  and  Regi- 
mental Commanders  of  Forney's  Division,  whom  I  have  this  day 
consulted.  The  Cavalry  are  still  firm  and  quiet,  but  only  waiting 
for  what  they  consider  the  inevitable  result,  viz,  Surrender. 

Respectfully,  Etc., 

J.  G.  Walkee, 
Major-General  Commanding  Div.  of  Cavalry. 

Headquarters  Forces  Front  Lines, 

Alexandria,  May  13th,  1865. 
Colonel  L.  A.  Bringier, 

Commanding  Seventh  Louisiana  Cavalry. 

Colonel : 

General  Brent  has  directed  me  in  his  temporary  absence  to 
open  all  communications  to  him  marked  "personal"  or  "private," 
and  if  they  related  to  official  matters  requiring  immediate  atten- 
tion to  refer  them  to  Col.  Vincent,  commanding  the  front. 

In  accordance  with  those  instructions  your  communication 
of  the  16th  instant  was  referred  to  Colonel  Vincent,  who  would 
respectfully  direct  you  to  use  your  own  discretion  in  granting 
leaves  of  absence  to  your  men  for  such  time  and  purpose,  as  you 
think  best  consistent  with  preserving  Regimental  organization. 
Indeed,  with  the  whole  country  filled  with  deserters  with  arms  in 
their  handsf  the  question  would  naturally  arise  whether  many  of 
those,  who  have  thus  far  remained  true  and  fast  to  their  colors 


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should  not  be  allowed  to  go  home  to  defend  their  families.  The 
fact  can  no  longer  be  concealed,  that  the  whole  Army  and  people, 
with  scarce  an  individual  exception,  are  resolved  to  fight  no  more, 
and  to  break  up  the  Army  at  all  hazards.  All  is  confusion  and  de- 
moralization here,  nothing  like  order  and  discipline  remains. 
Heavy  desertions  and  plundering  of  Government  property  of 
every  kind  is  the  order  of  the  day.  There  are  but  eighty-six  en- 
listed men  at  the  forts.  All  the  commands  of  every  arm  of  the 
service  at  and  near  Alexandria  are  destroyed,  viz:  Yoist's  and 
litcMahan's  Batteries;  the  Heavy  Artillery  and  Infantry  at  the 
forts,  the  Third  and  Fifth  Louisiana  Cavalry.  The  Second  Cav- 
alry still  retains  its  organization,,  but  there  have  been  heavy  de- 
sertions, the  men  are  thoroughly  demoralized  and  all  may  leave  at 
any  moment;  in  a  word,  Colonel,  the  army  is  destroyed  and  we 
must  look  the  matter  square  in  the  face  and  shape  our  actions 
(personally  and  officially)  accordingly.  The  Colonel  Command- 
ing commends  you  highly  for  your  success  in  preserving  thus  long 
your  organization  and  so  many  men.  He  thinks  that  all  that  can 
be  expected  of  you  is  to  use  every  mild  and  conciliatory  means  to 
preserve  your  Regimental  organization,  but  any  violent  measures 
to  restrain  desertions  now  is  believed  both  by  him  and  General 
Brent  to  be  conducive  of  no  good  results,  and  would  only  tend  to 
exasperate  the  soldiery  and  cause  them  to  commit  depredations 
on  citizens,  besides  endangering  the  lives  of  officers  uselessly. 
The  Colonel  Commanding  hopes  the  tenor  of  this  communication 
will  be  properly  understood ;  it  is  designed  to  be  merely  advisory, 
and  you  are  left  free  to  act  as  you  think  best,  and  at  the  same 
time  to  preserve  regimental  organization. 

Respectfully, 

D.  F.  Boyd, 

Asst.  Adjt.  Gen. 

Headquarters  Forces  Front  Lines, 

Alexandria,  May  20th,  1865. 
Colonel  L.  A.  Bringier, 

Commanding  Seventh  Louisiana  Cavalry. 

Colonel:     The  Colonel  Commanding  congratulates  you  on 

your  safe  arrival  at  Tanner's  with  your  train.    He  directs  that  you 

remain  at  or  near  Tanner's  till  further  orders,  and  if  you  find 

yourself  unable  to  preserve  your  train,  you  will  distribute  your 


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wagons  and  teams  to  responsible  planters  in  the  neighborhood  of 
your  camp,  taking  a  receipt,  "to  be  returned  on  your  order."  It 
would  be  worse  than  useless  to  attempt  to  bring  your  train  here. 
Every  wagon  and  mule  would  be  stolen  in  less  than  four  hours 
after  your  arrival.  There  is  corn  at  Tanner's,  at  your  own  depot, 
it  is  said,  and  also  Government  beeves  in  the  swamps  near  by.  CoL 
Vincent  believes,  therefore,  that  you  will  have  no  difficulty  in  sub- 
sisting your  command.  He  furthermore  impresses  upon  you  the 
necessity  of  preserving  your  regimental  organization  intact,  and 
for  that  reason,  and  the  fact  that  General  Brent  expressly  ordered 
that  your  leave  of  absence  be  withheld  till  further  orders.  Colonel 
Vincent,  in  the  absence  of  any  order  from  General  Brent  on  the 
subject,  does  not  feel  authorized  to  send  you  your  leave  of  absence. 
He  regrets,  that  he  feels  it  his  duty  to  contravene  your  wishes  in 
that  regard,  but  your  presence  is  so  necessary  at  all  times  to  your 
command,  and  especially  at  this  juncture,  that  he  feels  confident, 
that  you  will  cheerfully  acquiesce  in  his  decision.  General  Brent 
is  now  on  the  Mississippi  River  attempting  to  negotiate  a  surren- 
der of  General  Hays'  command.  District  of  West  Louisiana.  The 
Louisiana  Generals  are  acting  independently  of  General  Smith 
and  General  Buckner,  who  are  determined  in  no  event  to  surren- 
der, have  now  no  hope  of  success,  and  would  bring  ruin  on  Louis- 
iana and  Texas  merely  to  enable  them  to  escape  with  a  Corporal's 
Guard  into  Mexico.  For  these  reasons  Louisiana  must  look  out 
for  herself,  and  there  is  but  little  doubt,  that  in  a  few  days